The Commission to Inquire into Child Abuse might not be able to form any conclusions on allegations because long time-lapses meant that evidence on behalf of some alleged perpetrators was absent, it was contended yesterday. The commission is investigating alleged child abuse in State institutions from as far back as the 1930s and 1940s.
Yesterday at a public hearing, Mr Kevin Feeney SC, representing the congregation of sisters who ran 26 industrial schools, argued that the time-lapse meant some witnesses or alleged perpetrators had died or were unavailable, memories had grown dim, and documents were missing.
Mr Feeney said the commission, chaired by Ms Justice Laffoy, must hear any alleged perpetrator and search for all evidence which might in any way support or contradict the evidence given by alleged victims, the complainants.
"If there were complaints of abuse between 1935 and 1945, for instance, the only evidence you will ever have is from that one side being made by the complainants."
When the commission came to the pronouncement, there would only be a belief as to whether the allegation was true or not. There would be no actual evidence, he said. The commission would not be able to establish that the complaints had been proven.
Mr Feeney suggested a way of dealing with the problem. He said that when the complainant had given evidence, and where appropriate, an application could be made contending that a finding could not be issued as it was contrary to justice and fairness. He said the respondents must be able to cross-examine in a meaningful way. "The position could be there is no meaningful cross-examination because of death, lack of evidence, lack of documents."
It could not be a fair procedure if the commission heard the side of the complainants and there was no capacity to hear the other side.
Mr Feeney said the witnesses' evidence was compelling at a human level and was something the commission would want to believe, but its function was to determine whether such evidence was correct.
He had been at one private hearing where two people gave evidence. They had been in an institution at the same time but they were different ages. Some recollections coincided. Some did not, he said.
"Since the 1930s, no doubt it was a true account of their recollections of how it had impacted on them but we can't get to the stage of testing those recollections.
"The commission is allowed to hear complainants but in circumstances where the delay is such that we cannot test the evidence in an adjudicative manner, the consequences are: you can form a view but you cannot form a conclusion," he said. If the commission was satisfied that there was no factual evidence by which to test an assertion, the commission's capacity to give a decision had been hampered by the test of time, by the lack of witnesses.
Irish Survivors of Child Abuse (SOCA) issued a statement saying the challenge by the religious orders was yet another attempt to undermine the working of the commission and to influence the outcome of its final report.
"The religious orders are attempting to eradicate all possible evidence that its members were ever involved in child abuse," Mr John Kelly of Irish SOCA said.