POSITION PAPER ON BEHALF OF BIRTH MOTHERS FOR JUSTICE NI STATUTORY PUBLIC INQUIRY INTO MOTHER AND BABY HOMES IN NORTHERN IRELAND
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POSITION PAPER
ON BEHALF OF BIRTH MOTHERS FOR JUSTICE NI
STATUTORY PUBLIC INQUIRY INTO MOTHER AND BABY HOMES IN
NORTHERN IRELAND
__________________________________________
CONTEXT
The Group
1. Birth Mothers for Justice NI (“the Group”) was formed by a group of women
and adoptees who are all survivors of Mother and Baby Homes in Northern
Ireland1, the last of which was not closed until 19902. Most of the members of
this group have been actively and consistently campaigning for a public inquiry
into the circumstances of their experiences for many years3. Finally, in July 2020
a member of the group issued a pre-action protocol letter to the Minister of
Health seeking to compel the commissioning of a public inquiry through
Judicial Review.
Members of the Group an Interested Persons
2. The Group comprises women of Catholic and Protestant backgrounds and
those without faith. It is linked to and represents over 250 women and adoptees
who were admitted to Mother and Baby Homes across Northern Ireland and
provides important support, as some women are too damaged by their
experiences or otherwise unable to come forward themselves.
3. Individual members of the Group describe that they were given no other option
by social workers, their families and by the Church than to enter a Mother and
Baby Home. They describe referral to social services after finding out from their
doctor that they were pregnant. No alternative to admission was given by social
workers such as provision of housing assistance and other benefits which were
available at the relevant time. Many of the Survivors describe that their babies
were adopted without their consent, or in circumstances where they did not
1 The term ‘Mother and Baby homes’ includes the Magdalene Laundries and Mother and Baby
Homes in Northern Ireland as identified in: ‘Mother and baby homes and Magdalene laundries in
Northern Ireland’: report prepared for the inter-departmental working group; McCormick,
O’Connell, Dee and Privilege; January 2021 (“IDWG Report”)
2 IDWG report, p.21
3 As far back as 2013, some members provided evidence to Amnesty, which published a Briefing
Paper: ‘Magdalene Laundry-Type Institutions in Northern Ireland’ that was sent to OFMDFM in
May 2013 seeking a ‘human rights response’ from the Executive
1|Pageunderstand the legal process of adoption and they felt they were given no
choice4. Some of the babies born to Survivors were transferred outside of
Northern Ireland to the Republic of Ireland5, other babies were either stillborn
or died6.
4. The Survivors describe being effectively detained in Mother and Baby Homes
for the latter part of their pregnancy and that ante-natal treatment was not
provided to them. In many instances, they were forced to work in the homes
whilst heavily pregnant. They describe the environment in the homes as
without compassion and that they were verbally insulted and, in some cases,
physically assaulted7. Many of the women were under 18 years old when they
became pregnant and a significant number were under the age of 17, the age of
consent in Northern Ireland8. In some cases, the women became pregnant after
rape or incest. However, the crimes of rape, statutory rape and incest were not
investigated9.
5. All of the women encountered significant obstacles to finding information
about the circumstances of their treatment and the answers to very painful
questions, which has only exacerbated the effects of the trauma they have
suffered10. Such questions include:
(i) Why the offences that led to their pregnancies were not properly
recorded or investigated;
(ii) Why they not informed about the option of applying for their own
housing;
(iii) Why they were not given support to keep their babies;
(iv) Why they were subjected to harsh, cruel and demeaning treatment;
(v) Why they were they not provided with proper medical care before and
after birth, including support to help them deal with the loss of their
babies;
(vi) Why their babies were removed from them without their consent,
including the practice of forced adoption;
(vii) What happened to their babies, including whether they lived or died;
(viii) Which state agencies were involved in the system that placed them in a
Mother and Baby Home;
4 IDWG Report, pgs.27
5 Final Report of the Commission of Investigation into Mother and Baby Homes; Ireland; 30 October
2020; available at: https://www.gov.ie/pdf/?file=https://assets.gov.ie/118565/107bab7e-45aa-4124-
95fd-1460893dbb43.pdf; IDWG, pgs.28 and 32
6 IDWG Report, pgs.26 and 27
7 supra, pgs.36 to 38
8 supra, p.23
9 supra, p.24
10 supra, p..25
2|Page(ix) How and why State and non-State actors come to be involved in the
system;
(x) What contribution the state made to the funding of the Mother and Baby
Homes
6. Many of the women have been diagnosed with serious mental health issues as
a result of that system and all continue to suffer from the effects of it.
Purpose of the Position Paper
7. This paper sets out the position of the Group and establishes that collectively
the Group seek that the Minister for Health or the Minister for Justice
(collectively referred to as “the Ministers” and their respective Departments as
“the Departments”) establish a full-statutory Inquiry under s.1 of the Inquiries
Act 2005 (“Inquiries Act”) on the basis that the practice of placing women in
Mother and Baby Homes is a recognised matter of public concern. The power
of a Northern Ireland Minister to establish a public inquiry into matters of
public concern is clearly provided by s.1 (2) of the Inquiries Act.
8. The Ministers will also note that in the Republic of Ireland, a Commission for
Investigation into Mother and Baby Homes was established by Statutory
Instrument in 201511. The grounding legislation establishing the Commission
acknowledged that the practice of placing women in Mother and Baby Homes
in Ireland was a matter of “significant public concern”.
9. The Group’s position is that the practice in Northern Ireland was equivalent to
that in the Republic of Ireland but that in any event it has been well established
over the years by international and domestic organisations, and acknowledged
by the Minster of Health, that the practice of placing women in Mother and
Baby Homes is a matter of public concern12.
10. Furthermore, given the nature of systemic abuse that occurred to an
ascertainable group of young and vulnerable women (including the forced
adoption of babies), this is a matter in which Article 3 of the European
Convention on Human Rights (“ECHR”) is engaged. Despite the events
11 S.I. No. 57/2015: Commission of Investigation (Mother and Baby Homes and certain related
matters) Order 2015; available at: http://www.irishstatutebook.ie/eli/2015/si/57/made/en/print
12 UN Committee Against Torture: Concluding Observations on the Fifth Periodic Report on the
United Kingdom of Great Britain and Northern Ireland (June 2013); UN Committee on the
Elimination of All Forms of Discrimination Against Women (CEDAW): Concluding Observations
on the Seventh Periodic Report on the United Kingdom of Great Britain and Northern Ireland (July
2013); Mother and baby homes: the case for a public inquiry, The Detail (14 June 2017); UN
Committee Against Torture: Concluding Observations on the Sixth Periodic Report of the United
Kingdom of Great Britain and Northern Ireland (2019); IDWG Report (January 2021);
announcement of the Minister of Health (27 January 2021)
3|Pageoccurring prior to 1999, there is a duty upon the State to conduct an
investigation which is Article 3 compliant as there has been new information
come to light through the IDWG Report which was commissioned by the
Departments and therefore the Brecknell13 test has been met. The procedural
duty established by Article 3 ECHR requires an investigation with the following
features:
a. Capacity of leading to prosecution of well-founded allegations of ill
treatment;
b. thoroughness;
c. expediency;
d. independence;
e. Capacity to lead to the identification of the perpetrators whether agents
of the state or private individuals.14
11. The Group considers the IDWG Report evidences that the work done to date
has not involved, and was not intended to involve, an Article 3 ECHR compliant
investigation. This is effectively acknowledged by the Minister of Health
announcing that an “independent investigation will be held following a six-month
consultation with victims and survivors”15. However, the IDWG Report has served
to demonstrate the limitations of such an investigation, such as the extent of the
material that could not be examined in the time and the unexplored other
sources of potentially relevant material,16 together with the inability to compel
witnesses including where there had previously been an agreement to provide
evidence17.
12. The IDWG Report was limited by the fact that testimony was only taken from
those who volunteered to be interviewed and the concluding report does not
examine the full extent of the practice in Northern Ireland.
13. The Group’s position is, therefore, that the Inquiry must, at the very least, be
able to compel the preservation and production of relevant records and the
attendance of witnesses in order to ensure compliance with the Article 3
standards set out above.
SUBSTANTIVE SCOPE OF THE INQUIRY
13 Brecknell v United Kingdom (2007) 46 EHRR 957
14 Secic v Croatia, (2009) 49 EHRR 408, Sevtap Veznedaroglu v Turkey (2001) 33 EHRR 1412
15
Announcement of the Minister of Health, reported in The Irish News (27 January 2021), available
at: https://www.irishnews.com/news/northernirelandnews/2021/01/28/news/robin-swann-
apologises-to-mother-and-baby-home-survivors-2200999/
16 IDWG Report, p.22
17 supra, p.22
4|Page14. The Group’s position is that the Inquiry must be able to prepare a report and
make recommendations to the Executive Committee with a focus on the
Department of Health, the Department for Justice and such other bodies and
agencies as are identified as appropriate, addressing individual and systemic
failures in the practice of placing young girls and women in Mother and Baby
Homes and the practice of arranging for their babies to be offered for adoption.
15. The Inquiry must examine practices that led to abuse, including direct physical
or psychological abuse, inappropriate care or care of insufficient quality and
identify where responsibility lay.
Suggested terms of reference for the Inquiry
16. In the light of all the above, particularly the specific questions raised by
members of the Group that they have sought for so long to have answered but
which have remained unanswered, together with the public concerns into what
happened and how it happened, the Group’s position is that the ‘Terms of
Reference’ should include:
a. Identifying how and why any such abuse was permitted to occur over an
extended period without being identified and prevented;
b. Identifying systemic failures in respect of management, training, support,
protective and oversight systems within the Health and Social Care Board,
Police, and private organisations which provided Mother and Baby Homes that
permitted or led to the abuse occurring;
c. Identifying the extent to which the care in Mother and Baby Homes
corresponded to relevant statutory obligations, regulatory framework and policy
framework;
d. Identifying the extent to which any gaps or omissions in the relevant statutory
obligations, regulatory framework and policy framework, permitted or led the
abuse perpetrated in Mother and Baby Homes to occur, and/or led to a failure to
promptly hold those responsible for the abuse to account.
17. The Inquiry must also make recommendations. These should focused on
ensuring that such failings and abuse are never again permitted to occur. They
should also identify whether other responses are appropriate in order to
effectively respond to the failures identified, including an acknowledgement
(whether by way of an official apology, a public memorial or otherwise).
5|Page18. The Inquiry must be capable of establishing whether is appropriate or necessary
to establish a separate system for redress, with a view to whether compensation
and provision of psychological support, social support.
19. The Inquiry must also have the power to refer matters to the criminal
authorities.
POWERS OF THE INQUIRY AND PARTICIPATION
Power to compel evidence and preservation of records
20. The Group’s position is that it essential the Inquiry has power to compel all
relevant evidence including public records, records from Mother and Baby
Homes held by private and Church organisations, witnesses, communications
and reports.
21. It is also essential to ensure that all potentially relevant evidence is identified
and preserved as soon as possible including any recordings of evidence
provided to Survivors to the IDWG18. The preservation of all such material is
particularly significant given that the temporal scope of the Inquiry is not yet
established making it all the more important to ensure that all potentially
relevant evidence is preserved.
22. Accordingly, the Group asks that the Departments take immediate steps to
require private organisations such as the dioceses of the Churches and
managing charities such as the Salvation Army to preserve records relating to
Mother and Baby Homes.
Rules of disclosure
23. The Group’s position is also that it is important that the provision of evidence
to the Inquiry is not left solely to the entities and organisations which may be
subject to criticism by the Inquiry. It is therefore essential that the Inquiry has
its own researchers, independent of the Departments and any other parties
likely to be the object of the Inquiry’s investigation, who are provided access to
potential sources of evidence within the Department, Trusts and any other
relevant entities. The Group considers that given the extent of information and
documentary evidence that will be sought, that a fully independent research
18 See for example the concerns raised over the decision to delete audio recordings of witnesses who
gave evidence to the Irish mother-and-baby homes inquiry reported by the BBC on 10 February
2021 in ‘Mother-and-baby homes: Questions raised over deleted recordings’, which can be viewed
at: https://www.bbc.com/news/world-europe-55909216
.
6|Pageteam with relevant professional experience should be established to gather
documents and manage disclosure.
24. Any statutory instrument governing the Inquiry must therefore provide rules
of disclosure requiring that all participants, including Survivors, are provided
with relevant evidence at the same time. This is to ensure that Survivors are able
to properly process and fully engage with disclosure on highly sensitive issues
to them.
Conduct of the Inquiry’s work, reporting and archiving
25. The Group’s position is that the work of the Inquiry must be conducted in as
transparent a manner as possible, consistent with the effective investigation of
the matters falling within the terms of reference, and having regard to all the
relevant duties of confidentiality. They and the public have been denied
relevant information for too long and such transparency will serve a further,
important purpose, of building trust.
26. As part of that transparency and to ensure that lessons can begin to be learned
as soon as possible, the Inquiry must be required to publish regular reports and
there must be a date by which the Inquiry is required to publish its final report,
including with its recommendations. This is to prevent the publication date of
the publication of that report being unilaterally determined by the ‘internal’
requirements of the Departments and/or the Executive.
27. Furthermore, the material produced as part of the investigative work of the
Inquiry must be accessible to the public as an archive, having regard to all the
relevant duties of confidentiality. This is so that Survivors, who may not be able
to consider add absorb it contemporaneously, will be able to return to it as their
needs require as well as to ensure that it is available for academic purposes
research and to have the maximum lessons learned impact.
Facilitating the participation of Survivors
28. The Departments are aware that the subject matter of the Inquiry relates to
highly sensitive events in the lives of the Group, and indeed Survivors in
general.
29. All of the members of the Group and most of the Survivors identified in the
IDWG Report, were girls or young women at the time of their admission and
all of the Group has experienced trauma as a consequence of what happened to
them.
7|Page30. This is however not a reason to fail to investigate such a significant and
concerning practice that is acknowledged to be of public concern. Rather, the
Departments should design an inquiry which is capable of investigating in a
sensitive manner with appropriate levels of psychological support to Survivors
who wish to give evidence. Many Survivors report that the stigma they have
experienced has been a consequence of or exacerbated by the failure to
investigate the practice and not any review or investigative process that has
taken pace to date. This issue of the care of Survivors in the context of an
investigation, whether in providing their evidence, during the ongoing
investigative work, participating in hearings or after the publication of a report,
is by no means a unique consideration. It has been addressed by other
investigations involving vulnerable persons with similarly sensitive issues,
including for example: Commission of Investigation into Mother and Baby
Homes and its reference to counselling supports together with its Confidential
Committee and the reference to staff training19; Independent Inquiry into Child
Sexual Abuse together with its Truth project and its reference to support
workers20, The Royal Commission of Inquiry into Historical Abuse in State and
Faith-Based Care, which referenced the work of Professor Lundy to produce a
trauma-informed approach21.
31. Accordingly, in designing the Inquiry, the Departments can seek information
about other inquiries which have investigated events and conduct that has
caused trauma to victims or survivors and learn from best practice. Regional
and national mental health charities can be consulted to identify special
measures that can be designed to allow evidence to be obtained in a manner
which does not retraumatise survivors. This may include the provision of
19 ‘Counselling Supports’, section 11; Final Report of the Commission of Investigation into Mother
and Baby Homes; Ireland; 30 October 2020 and Report of the Confidential Committee to the
Commission of Investigation into Mother and Baby Homes October 2020: “The Commission
organised training for the committee members and the staff who were dealing with the former residents. All
staff members who were likely to interact with witnesses, for example, reception staff, were included in the
training. The major emphasis was on preserving the confidentiality of the witnesses and ensuring that they
were comfortable and had a satisfactory experience”, pgs. 5-6, which can be viewed at:
https://www.gov.ie/en/publication/d693a-report-of-the-confidential-committee-to-the-commission-
of-investigation-into-mother-and-baby-homes-october-2020/
20
Truth Project (part of the Independent Inquiry into Child Sexual Abuse): “Our support workers have
experience of working with adult survivors of child sexual abuse. If you share your experience by phone,
video call or in writing, you can talk to your support worker over the phone”, which can be viewed at:
https://www.truthproject.org.uk/any-questions#1456210737
21
The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care: A
Preliminary Review; 14 May 2020; p.68, which can be viewed at:
https://cdn.auckland.ac.nz/assets/auckland/arts/our-research/research-institutes-centres-
groups/ppi/ppi-reports/complete%20report%20Winter.pdf.
See too ‘Through the Lens of Survivors: Lessons from the Northern Ireland Historical Institutional
Abuse Inquiry’; Professor Patricia Lundy; February 2020, which can be viewed at:
https://pure.ulster.ac.uk/ws/portalfiles/portal/78477489/Lundy_HIAI_Briefing_Paper_Feb_2020.pdf
8|Pagepsychological support together with a counselling service on the days that
Survivors give evidence which should continue to be available after the
publication of the Inquiry report.
32. The Group consider that if the Inquiry hearings are to be conducted in person,
then the venue for the Inquiry must be in a place that is central and easily
accessible by public transport so as to ensure that Survivors can easily attend.
In any event, provision must also be made for Survivors to fully participate
remotely in the event that for reasons relating to the Covid-19 pandemic or their
personal situation they are not able to attend in person.
33. In the event of in-person hearings, consideration should be given to the type of
building used. A former court building, as was used for the Historical
Institutional Abuse Inquiry, is unlikely to be conducive to the type of
environment needed.
LEGAL REPRESENTATION OF SURVIVORS
34. The Group’s position is that to ensure the effective participation of Survivors in
a manner that is supported and non-traumatising and those participating in the
Inquiry must be able to have independent legal representation. Such
representation will also ensure that they have equality of participation with the
authorities, organisations and bodies that are likely to be the focus of the
Inquiry’s investigation.
35. Provision must be made for that legal representation to be non-means funded
by the Departments and/or non-means assessed legal aid to ensure the full
participation of Survivors. This is particularly the case as the purpose of the
Inquiry is to investigate a matter of public concern arising out of conduct
directly that affected them. Accordingly, the Survivors should not have to bear
the cost of ensuring their full and effective participation.
THE PANEL
36. The Group’s position is that the complexity of the matter and the variety of
issues arising makes it appropriate to have an Inquiry panel rather than a single
chair. This is in keeping with other recent large investigations spanning lengthy
periods and dealing with issues concerning a range of State and non-State
actors.
37. The Chair of the Panel (“Chair”) must be widely respected and be seen as a
strong independent voice. This is important to ensure that the
recommendations of the Inquiry will carry force and render them more likely
9|Pageto be implemented. Given the duty of the State to conduct an independent
investigation under Article 3 ECHR, the Chair should have judicial experience.
38. In addition, the Chair and/or members of the panel would need to have a solid
understanding of public administration, significant experience with
governmental or health bodies and proven experience of addressing/
investigating disputes at high level.
39. These criteria are likely to be best met by the Chair, although not necessarily the
panel, being from outside the jurisdiction.
15 February 2021
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