High Court to hear test challenge against mother and baby commission’s report

The State is expected to focus on the independence of the Commission of Investigation into Mother and Baby Homes in how it carried out its investigation when defending a test challenge this week by retired nurse Philomena Lee over the commission’s final report.

The High Court is also expected to be told of a Government commitment to implement a redress scheme, details of which will be put before Cabinet this week.

Ms Lee was sent to the Seán Ross mother and baby home in Co Tipperary in 1952 after becoming pregnant aged 18. Her son, when aged three, was sent to a US couple for adoption.

Her life was made subject of a book by Martin Sixsmith, entitled The Lost Child of Philomena Lee, which was made into a film directed by Stephen Frears, featuring Judi Dench as Ms Lee.

Now in her 80s and living in England, Ms Lee claims she is identifiable in the commission’s final report, with the effect she was legally entitled to get and make submissions on its draft findings before the final version was published. The failure to do so breached her rights, she claims.

Evidence

Mr Justice Garrett Simons will on Wednesday begin hearing two lead cases – by Ms Lee and Mary Harney (72) from Co Galway – over the final report, which both women claim does not accurately reflect their evidence to the commission.

The Irish Human Rights and Equality Commission will make submissions focusing on the rights of victims of historic abuse to access justice and an effective remedy.

In an affidavit on behalf of Ms Lee, solicitor Wendy Lyon of Abbey Law says the commission’s findings included that there was “no evidence” to support the opinion of some women that their consent to adoption was not full, free and informed. Ms Lee gave evidence that she was not given any time to consider a document that she was told to sign which relinquished her rights to her son, Ms Lyon said.

Ms Harney, born in the Bessborough mother and baby home in Cork in 1949, claims she is readily identifiable in the final report and was thus entitled to make submissions the commission should not have omitted evidence she gave to it of abuse and neglect while boarded out between 1951 and 1954.

In opposing the cases, the State maintains it had no role or involvement in how the commission carried out its investigation or regarding its recommendations, which are not binding.

Investigated

The State says, given the commission’s independence, and the scope and complexity of the matters investigated, it does not accept the commission’s failure to refer, in specified paragraphs of its final report, to evidence of the two applicants means those paragraphs are unfair or unlawful.

The lead cases will decide a core claim, made in nine separate cases by former residents, concerning the scope of section 34 of the Commission of Investigation Act 2004. The applicants claim section 34 requires that they, as persons unnamed but allegedly identifiable in the final report, be given the draft report and the opportunity to make submissions on that.

The failure to do that breaches section 34 and their fundamental rights under the Constitution and European Convention on Human Rights, they claim.

With the commission having been dissolved, the challenges are against the Minister for Children, the Government, Ireland and the Attorney General.