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Mother and baby homes how we could learn from Australia

Monday, 23rd June, 2014 3:00pm
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Mother and baby homes how we could learn from Australia

The tragic story of the deaths of hundreds of Irish babies poses many legal questions, writes solicitor Helen Collins

The many tragic issues arising out of the so-called ‘mother and baby homes” have been extensively highlighted recently.

The biggest legal challenge in dealing with these matters is the Statute of Limitations. This is the collective name for a number of laws which provide for certain time limits for bringing different types of actions before the courts. However, there are exceptions to the application of these time limits. Fraud by any means, including forgery, would qualify as an exception.

When we, together with other Irish legal firms, formed part of a spearhead movement in the late 1990s to vindicate the rights of children who had suffered all kinds of abuse in Industrial Schools, the Government at that time agreed to establish a full inquiry called the Commission to Inquire into Child Abuse.

Ultimately a compensatory body, the Residential Institutions Redress Board, was set up. The important ingredient was the decision by the then Government to make a change to the Statute of Limitations Acts. This gave a window of 12 months to all claimants to start their claims before the courts, regardless of the time that had passed. Some people making their claims had been in the Industrial Schools as far back as the 1930s.

The Adoption Act first came into law in 1952. It was an essential legal requirement of the Act that a child’s mother or guardian must give full consent in the way set out in the Act. It was also an essential legal requirement that the applicants (the people applying to adopt the child) must be resident in Ireland. If that consent was not validly given, and if the laws were broken, then a serious question arises as to the validity of the adoption.

Forced adoptions have been a major issue in Australia. In 2013 their Prime Minister Julia Gillard offered a national apology to those affected by forced adoptions. The Australian Senate Enquiry Report found that babies of unmarried mothers were illegally taken by medical staff, social workers and religious persons, sometimes with the assistance of adoption agencies and other authorities, and adopted out to married couples.

Many of these adoptions occurred after the mothers were sent away by their families due to the social stigma associated with being pregnant and unmarried.

It was found that some women were drugged, others restrained, some forced to sign, signatures faked, no informed consent and few (if any) chose to give their children away.

This went on up to the 1970s. It is recognised that this has resulted in major issues for generations of families and for Australian society. Many mothers have died early due to stress related illnesses or committed suicide. Many who have survived do so suffering complex Post Traumatic Stress Disorder.

It is well worthwhile to read all of Julia Gillard’s apology in the Senate and the House of Representatives – all 19 points. At point number 17 the Australian Parliament undertook to ensure that “all those affected get the help they need, including access to specialist counselling services and support, the ability to find the truth in freely available records and assistance in reconnecting with lost family”.

Currently, proposals have been made to the Australian Government in relation to a National Programme of Repatriation and Reconciliation which will be composed of four parts:

1. Restitution of legal status and correcting legal error.

2. Reunion and restoration of separated families.

3. Truth and reconciliation

4. Compensation.

* Colette McCarthy and Maria O’ Donovan, solicitors, Wolfe & Co Skibbereen, (028 21177), also contributed to this article.