The State will argue against a series of judicial reviews being taken by survivors of mother and baby homes saying that the dissolved commission was independent and that several of the women do not appear to be identifiable.
A number of High Court challenges against the Mother and Baby Homes Commission report are pending after the survivors in question said there were misrepresentations in the evidence they gave, which they believe they can identify as their own.
They have also complained that they were not given a right of reply before the final report was published.
The cases, including one by retired nurse Philomena Lee, have been brought against the Minister for Children, the Government, Ireland and the Attorney General.
Public information
The Chief State Solicitor’s Office lodged statements of opposition on Tuesday night setting out the Government and State’s position.
In one woman’s case, the papers state that the Government had no role or involvement in how the commission carried out its work or function.
On that basis, the State says, it would not be appropriate to defend “the factual findings of the commission”, except on the basis of publicly available information.
The documents say that while the woman believes she is identifiable, she “does not appear to be identifiable on the basis of the limited information contained in the relevant paragraphs of the report”.
The State further says she is “not named or otherwise directly identified” in the reports.
“The commission was entitled to a margin of discretion in determining whether a person is identified in or identifiable from the draft report. Its decision in that regard, within its margin of discretion, is lawful in the circumstances.”
Despite this, the State says that if the court were “to conclude that the applicant is indeed identifiable from the relevant paragraphs of the final report”, then they are “advised that the commission ought to have furnished the applicant with a draft of the relevant parts of the draft report.”
Summary
Ms Lee (88) is seeking to have certain findings of the commission’s final report, such as those related to forced adoption, quashed.
The State will argue that when it comes to the executive summary of the final report “this is not, and could not be expected to be, a complete account of the commission’s investigation.”
The State also does not accept that the dissolution of the commission deprived those taking a case “of an opportunity to challenge any alleged failure on the part of the Commission to comply with its obligations and/or the findings and recommendations made in the commission’s final report.”
The cases are due for mention again next week and solicitors will meet in the coming days to decide whether to bring a number of test cases together, or whether the cases should be held separately.
Meanwhile, the Government is set to consider plans to appoint a human rights expert to examine the testimonies given by survivors to the commission’s confidential committee.
A source said the Government was conscious that “survivors feel their full experience as they told it is not reflected in the summaries of their transcripts put in the confidential committee chapter and they don’t feel they are fully reflected elsewhere in report too”.
