The who and what of the Irish Commission of Investigation into Mother and Baby Homes

As stated in our blog last week the Irish Commission of Investigation into Mother and Baby Homes was set up in 2015 following revelations about the deaths and burials of hundreds of children at one such former institution in Tuam, Co Galway.

The commission was charged with examining what happened to vulnerable women and children in mother and baby homes during the period 1922 to 1998, a span of 76 years. The final report, which had been with the Irish Government since late last year was published on the 12 January 2021.

The three members of the Commission were Ms. Justice Yvonne Murphy, Prof Mary Daly and Dr William Duncan. Ms. Justice Murphy had previously investigated the handling of clerical child sex abuse cases in the Roman Catholic Archdiocese of Dublin and the Diocese of Cloyne in Cork. Prof Daly is President of the Royal Irish Academy and former professor of Irish history at UCD. Dr Duncan is a retired Professor of Law at Trinity College, Dublin, and is a former member of the Law Reform Commission.

The Commission investigated 18 institutions: 14 mother and baby homes and a sample of four county homes.

The mother and baby homes investigated were as follows:-

  • The Children’s Home at Tuam, Co Galway;
  • Ard Mhuire at Dunboyne, Co Meath;
  • Belmont on Belmont Avenue in Dublin;
  • Bessborough in Cork;
  • Bethany in Dublin;
  • Denny House in Dublin;
  • The Kilrush Home in Co Clare;
  • Manor House at Castlepollard, Co Westmeath;
  • Ms Carr’s at Northbrook Road in Dublin;
  • The Regina Coeli hostel on North Brusnwick Street in Dublin;
  • Seán Ross Abbey in Roscrea, Co Tipperary;
  • St Gerard’s on Mountjoy Square, Dublin;
  • Pelletstown/St Patrick’s on the Navan Road, Dublin, and
  • The Castle in Newtowncunningham, Co Donegal.

The four county homes investigated were as follows:-

  • St Kevin’s institution in Dublin,
  • Stranorlar County Home in Donegal,
  • Cork City County Home and
  • Thomastown County Home in Kilkenny.

It held 195 hearings which involved 64 former residents of the institutions, 30 advocacy groups and 16 sisters/members of religious congregations. In addition the Commission heard from experts, social workers, local authority officials, Government officials, people who worked in the homes and others who had experience of how the homes had been operated.

The most recent information to hand, which is from October, 2020 confirmed that the Commission had cost €11.5 million to date which seems a conservative amount as the Irish Government had allocated €23 million to cover the work of the Commission.

In a series of blogs over this coming week we are going to look at the findings of this Commission, the recommendations made by it (especially the recommendations on redress) and the reaction to the report from the Irish State, the Roman Catholic Church in Ireland and Survivors and Victims.

Written by James Chambers at BLM

South Korean court orders Japan to compensate wartime sex slaves

A Seoul Court has ordered Japan to compensate a group of wartime sex slaves.

This recent judgment is the most recent piece of an ongoing dispute between the two countries on the issue of sexual enslavement of women in the Second World War.

The Seoul Court found that the Japanese Government was liable to compensate 12 women who were forced to work as “comfort women” and to pay 100 million won (£67,000) in compensation to each of the women.

It is thought that as many as 200,000 women mostly Koreans were compelled or duped into working in military brothels for the Imperial Japanese Army during the Second World War, many were raped and beaten and had forced abortions.

Japan who said the court has no jurisdiction and took no part in the proceedings is unlikely to comply with the judgment of the Seoul Court.

Japan has argued that sovereign immunity applies in these cases but the Seoul Court ruled that “Even if it was a country’s sovereign act, state immunity cannot be applied as it was committed against our citizens on the Korean peninsula, which was illegally occupied by Japan.”

Japan has also argued that all compensation claims were settled in 1965 when both countries re-stablished diplomatic ties and any outstanding issues were addressed in a 2015 agreement between the parties.

In late 2015, the countries said they had “finally and irreversibly” resolved this issue when Japan agreed to contribute ¥1bn to a foundation to support survivors and their families, while the then Japanese prime minister, Shinzo Abe, offered his “most sincere apologies”.

However, in in 2018, South Korea’s president, Moon Jae-in, effectively reversed the settlement, which he had not been party to on the basis that it did not meet the needs and expectations of the surviving women or the wider South Korean public.

There are only 16 registered survivors/”comfort women” still alive and of the 12 survivors who brought this claim, which has been ongoing since 2013 only 7 are still alive though the families of the other 5 are able to represent their interests.

This judgment (which is unlikely to be the end of this thorny issue) also serves as a reminder to people dealing with claims relating to historical sexual abuse, of the importance of achieving a fair and equitable settlement as between the parties so as to ensure finality for all.

Written by Sharon Moohan at BLM

Commissioner for England says children at risk of ‘abuse or exploitation’ as thousands are sent to unregulated care homes due to COVID-19

Thousands of the most vulnerable children have been sent to unregulated care homes during the pandemic.  The number of children in need has soared during the COVID crisis and council leaders say there is nowhere else to place those most at risk as there are not enough places in regulated care homes.  Therefore young people are being placed in supported living facilities which are not monitored by Ofsted.

Anne Longfield, the Children’s Commissioner for England, said the children’s care system had been “left to slip deeper into crisis” during the last year leaving children at risk of “abuse or exploitation.”

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An update on the extension of the ‘look-back’ window in New York City

In August 2019, adult victims of childhood sexual abuse were given a year-long window of opportunity to seek justice for their suffering. The ‘look-back window’ suspended the statute of limitations under the Child Victims Act to allow survivors to file their case between 14 August 2019 and 14 August 2020. This window was later extended by Governor Andrew M. Cuomo in light of the COVID-19 pandemic, allowing survivors to file suit for historic claims of abuse under the Child Victims Act until 14 August 2021. Prior to the look-back window, under the Child Victims Act, victims of abuse had from 1 to 5 years from the date of their 18th birthday to file a suit.

Since the news of the look-back window, other States have taken a similar approach including New Jersey, who provided a two year window for survivors, and California who permitted a three year window. These are just two examples of fifteen states who have amended their laws on limitation when it comes to claims arising out of historic sexual abuse. Whilst the COVID-19 pandemic is currently a key factor being taken into account when making decisions on limitation, it is without doubt that these changes were also influenced by the Me Too movement and the Jeffrey Epstein scandal.

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Irish Government to issue state apology and to publish final report of the Commission of Investigation into Mother and Baby Homes and Other Related Matters

On Sunday this week the Irish Government confirmed that the Irish Prime Minister, Taoiseach Micheál Martin will issue a state apology to all victims and survivors of the mother and baby homes in the Dáil later this week, the apology is expected to be made tomorrow afternoon.

The Irish Cabinet met this morning to approve the final report of the Commission of Investigation into Mother and Baby Homes and Other Related Matters.

The Commission is a judicial commission of investigation it was established in 2015 by an order of the Irish Government.

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Northern Ireland launches public consultation to provide a statutory basis for adult safeguarding

On the 17 December 2020 the Northern Ireland Health Minister Robin Swan launched a consultation into legislative options to bring forward a new Adult Protection Bill.

In September 2020 Minister Swann committed to bring forward a new Adult Safeguarding Bill for Northern Ireland, to help protect care home residents and other vulnerable members of society, this commitment was made in response to the first report from an independent review commissioned to examine the health and social care system’s response to care failings at Dunmurry Manor Care Home. We covered this matter in an earlier blog, here.

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Australian Government to introduce sanctions for charitable organisation who fail to join the National Redress Scheme

When the Australian National Redress Scheme (NRS) was established in July 2018, institutions named in the Royal Commission into Institutional Responses to Child Sexual Abuse and/or in an application to the NRS were asked to join the scheme by 30 June 2020.

Due to difficulties that some institutions may have experienced as a result of COVID-19, institutions were asked to provide a written statement outlining their intention to join but given an extension of time to complete the process by 31 December 2020.

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The Irish Data Protection Commission seeks submissions on draft fundamentals for a child-oriented approach to data processing

On the 18 December, 2020 the Irish Data Protection Commission published its draft fundamentals for a child-oriented approach to data processing for the purpose of consulting with all stakeholders and interested parties. All of whom are invited to respond to the draft fundamentals by making submissions and/or providing their observations by the 31 March 2021.

These draft fundamentals have come about as a result of two-streamed public consultation that the Data Protection Commission (DPC) ran during the first half of 2019, one addressed to children and young people and the other addressed to all other stakeholders including parents, educators and children’s rights organisations, as well as organisations which process children’s data.

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Update on the Australian National Redress Scheme

Second anniversary independent review submissions due by 11 November 2020

Robyn Kruk AO was appointed to conduct an independent review of the NRS which is required by the legislation (Section 192 of the National Redress Scheme for Institutional Child Sexual Abuse Act, 2018), her review will examine the operation and administration of the NRS, the experience of applicants, the financial support provided to the NRS and the support that is provided to applicants and people thinking of applying. Ms. Kurk AO is seeking submissions from applicants, their families, support service and advocates and she will provide a report to the Australian Government. The Australian Government will respond to that report and in due course the report and the Government response will be published. Due to Covid-19 the final date for provided feedback and/or making a submission was extended from 23 October 2020 to 11 November 2020.

The review was due to be completed in early 2021, and was expected to report to the Minister for Families and Social Services by the end of February 2021 however, in light of the extended date for feedback and submission this timetable will also likely be extended.

National Redress Scheme strategic success measures report published on 26 November 2020

In April 2020, the Redress Scheme Governance Board commissioned the establishment of a set of strategic success measures for the NRS. The NRS strategic success measures provide survivors and the broader community with an indication of how the NRS is performing.

The measures focus on three priority areas within the Scheme:

  • Survivor Experience,
  • Health of the Scheme and
  • Equity of Access.

On the 26 November 2020 the NRS published its first report on strategic success measures, the publication of this report and its finding in respect of these strategic success measures provides the preliminary basis for gauging the overall performance of the NRS to date. This report covers the period 1 July 2019 to 30 June 2020 and used data up to 30 September 2020.

The report noted that the NRS is committed to delivering continual improvement in how it delivers redress, this includes aiming to ensure that at least 80% of applications that name institutions that participate in the NRS have a decision communicated to the applicant within six months of being received by the NRS. In addition the NRS says that it will continue working closely with all state and territory governments to ensure institutions named in applications for redress join the Scheme.

The report shows that substantial improvements have been made in application processing times. From 1 July 2018 to 30 June 2019, the NRS finalised a total of 239 applications, giving an average of 20 per month over the period. By comparison, from 1 July 2019 to 30 June 2020, the NRS finalised a total of 2,537 applications, giving an average of 211 per month over the period. Further improvements were seen in the period from November, 2019 to April 2020 where the NRS provided an average of around 260 outcomes to applicants per month and in May and June 2020, this increased to 590 outcomes per month.

As of the 30 September 2020, 77% of applicants have accepted the offer of redress made to them by the NRS, 54% of applicants had accepted an offer of counselling and psychological care and 45% of applicants had requested a direct personal response from an institution.

As at 30 September 2020, the Commonwealth, all state and territory governments and 272 non-government institutions are participating in the NRS, covering more than 51,000 sites. These figures increased substantially between the first and second years of the NRS. The number of non-government institutions participating increased from 47 as at 30 June 2019 to 272 as at 30 September 2020.  It was reported that a further 158 institutions in this category have committed to join the NRS by 31 December 2020. Institutions named in applications or by the Royal Commission that do not join the NRS will be publicly named and may face financial penalties. We will be doing a separate blog later in the week focussing on this specific aspect of the NRS.

The report also provides some interesting data on the applicants themselves, 15% of applicants to date are aged 70 or older, 34% of applicants identify as Aboriginal or Torres Strait Islander and 50% of applicants have a disability.

The report notes that in its second year of operation the NRS wished to prioritise the processing of the large number of applications received in the first year (prior to 1 July 2019). These older applications were prioritised over new applications received during this time and around 2,537 applications received in the first year have now been finalised. While there are a small residual number of older claims currently being actioned, the NRS expects that these timelines for application processing will continue to improve.

Similar reports will be published on a 6 monthly basis going forward.

Application progress as at 18 December 2020

As at 18 December 2020, the Scheme:

  1. had received 9,008 applications had made 5,262 decisions
  2. issued 5,113 outcomes finalised 4,503 applications, including 4,464 payments totalling approximately $371.2 million
  3. had made 563 offers of redress, which are currently with applicants to consider
  4. was processing 4,188 applications

Sharon Moohan is a Partner at BLM

Scottish parliamentary committee publishes Stage 1 report on Scottish in-care redress bill

On 9 December 2020, the Education and Skills Committee at the Scottish Parliament published a 127 page report on the Scottish in-care redress bill after hearing evidence over a number of sessions (link here). The Scottish Parliament, sitting in chamber, will debate and vote on the general principles of this bill on 17 December 2020.

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