MEMORANDUM 17
Submitted by Tim Boland, Department of Education and Science, Republic of Ireland (CA 210)
THE RESPONSE OF THE IRISH GOVERNMENT TO PAST INSTITUTIONAL CHILD ABUSE
Over 30,000 people, born since 1930 were sent as children to industrial schools and reformatory schools by the Irish Courts. Very many more were sent to the same institutions which operated simultaneously as orphanages. The legislation governing these committals was, and remains, the Children Act, 1908—An Act enacted by the parliament of the United Kingdom of Great Britain and Ireland and under which a similar system of juvenile justice operated in Great Britain for many years. Ireland has now enacted legislation which, when fully implemented, will sweep away the last remnants of the 1908 Act.
For decades the system of operation, management and regulation of the industrial and reformatory schools in Ireland was characterised by private ownership of the institutions which were publicly funded. The owners of the institutions were overwhelmingly religious congregations which in turn were overwhelmingly Catholic. This system predated independence from Great Britain. Ever since the first industrial and reformatory schools were introduced into Ireland in the 1860s religious congregations, Catholic and Protestant, undertook the difficult and largely unrewarded work of providing for children who suffered multiple disadvantages. Local and central government were only too happy to delegate this duty to them.
The full story of the reformatory and industrial schools must await the report of the Commission to inquire into Child Abuse. However, it is clear that combined with a system of detention schools owned and operated by non-public bodies there existed for much of the period considerable financial hardship in Irish society. This meant that public bodies were only too willing to allow the care of children, for whom there often was no other carer, to be left in the hands of religious communities who enjoyed a high level of respect in their communities. It would appear that either the importance of the controls in the 1908 Act, as regards inspection and regulation, for the protection of children were not well understood at official level or were to a great extent considered to be unnecessary in the circumstances. Out of this mix of poverty, charitable intentions, economic depression, official ignorance or indifference and a society careless of the welfare of children grew widespread neglect and abuse of vulnerable children.
On 11 May 1999 the Irish Government announced a package of measures aimed at addressing the issue of past institutional abuse of children. The measures then taken by the Government addressed the issue of past abuse on a number of fronts.
— The Commission to Inquire into Child Abuse was established under statute;
— Counselling services dedicated specifically to victims of past abuse were set up by each local health authority;
— Certain changes were made to the Statutes of Limitation in respect of sexual abuse while the Law Reform Commission were asked to review the situation with respect to physical abuse and to report.
On the day of publication of these measures the Taoiseach apologised to victims of abuse in childhood in the following terms:
"The time has long since arrived since when we must take up the challenge which the victims of childhood abuse have given us all. A new comprehensive approach is required to dealing with both the effects and prevention of this abuse. The starting point for this is simple but important; to apologise. On behalf of the State and of all citizens of the State, the Government wishes to make a sincere and long overdue apology to the victims of childhood abuse for our collective failure to intervene".
Stating that all children need love, care and security, the Taoiseach continued "Too many of our children were denied this love, care and security. Abuse ruined their childhoods and has been an ever present part of their adult lives, reminding them of a time when they were helpless".
COMMISSION TO INQUIRE INTO CHILD ABUSE
The Commission to Inquire into Child Abuse is chaired by a Judge of the High Court and has the powers of that Court as regards taking evidence on oath, discovery and inquiry. Rather than fixing the terms of reference for the Commission, and thus be open to the charge of limiting its scope, the Government first appointed the Commission on an administrative basis with the job of considering what its terms of reference should be and what powers it would need and reporting to the Government on its recommendations. The Commission's subsequent report was accepted in full by the Government and incorporated into the Commission to Inquire into Child Abuse Act, 2000.
The definition of abuse was obviously a key issue to be considered by the Commission. They were aware that abuse could take many forms, physical, sexual, emotional and otherwise. The Commission recommended that abuse should be defined so as to be as broad and inclusive as possible. To this end, they proposed and the Act contains a definition of abuse which includes physical abuse, sexual abuse, neglect, and emotional abuse.
The Commission recommended, and the Act provides, powers and privileges similar to those of the High Court, including the power—
(a) to compel the attendance of witnesses;
(b) to order production of documents;
(c) to take evidence on oath or affirmation; and
(d) to appoint Inquiry Officers to carry out preliminary investigations.
The legislation provides, as recommended, that the Commission should have a dual structure to meet the differing needs of victims. On the one hand, there would be a Confidential Committee, which would hear, in total confidence, the testimony of witnesses who did not wish their allegations to be inquired into. This committee would exercise solely a therapeutic function, allowing victims of abuse to tell their story in an atmosphere of compassion and understanding. A total of 1,270 requests have been received by the Confidential Committee.
The Investigation Committee would hear witnesses who wish to make allegations of abuse and see their evidence investigated by the Committee. This Committee could summon witnesses and compel the production of documents. A total of 1,957 requests have been received by the Investigation Committee.
The Act provides that both Committees should report to the Commission on their findings. The Commission in turn will produce a report, based upon these reports. The findings of the Confidential Committee will be of a general nature, and will be specifically identified as emanating from that Committee. This is important given that the evidence will be largely untested.
In the case of the Investigation Committee proceedings however, the report may name individuals who committed abuse, and name institutions where abuse occurred. It may also establish responsibility for abuse or failures in regulation and management both at the level of the owners and managers of the institutions and the public bodies responsible.
COMPENSATION
One of the terms of reference given to the Commission was to recommend the measures to be taken to address the needs of abuse victims. The Government from the outset envisaged that a scheme of compensation would in all probability arise from the work of the Commission. Clearly the preferred scenario would have been to develop a scheme with the benefit of the final report of the Commission. In this scenario the Government would be seised of all the information it needed about the nature and extent of abuse, the institutions where it occurred and the views of the Commission as to what might be done by way of compensation.
During the early stages of the Commission, it became clear that the Investigation Committee would not be able to function unless the scheme of compensation was initiated. This difficulty arose because the legal representatives of victims considered that they should not go to the Investigation Committee until they had details of the extent, and operation, of the compensation scheme. Their view, putting it simplistically, was that their clients should not show their hand until they had some guarantee of compensation. There is some merit in this argument but it was undoubtedly motivated too, to some extent, by commercial considerations and the fact that the Government clearly did not want the Commission to fail through the non-co-operation of potential witnesses on the advice of their lawyers.
That said there were other reasons to move sooner rather than later with a compensation scheme. Many of the potential claimants to the scheme were becoming old and infirm. If compensation was to have any meaning to them as redress for past wrongs then the sooner they had access to it the better since it was clear that many would not have long to enjoy it. Statistics show that in cases pending before the courts, 10 per cent related to children who were in the institutions in the 1930s and 1940s, while 26 per cent related to children who were in the institutions in the 1950s. These people are now in their 60s and older.
The pending legal cases were another reason to press forward with a compensation scheme. There are at present in the order of 2000 cases pending before the courts in which the State and religious congregations are defendants arising out of alleged past abuse. While issues of liability have not been determined, the prospect of any significant proportion of these cases proceeding to hearing was a daunting one. The cases could be expected to make serious demands on court resources for many years. An administrative compensation scheme had obvious advantages.
There was of course a possibility that the courts might not allow the cases to proceed for reasons related to limitation periods. However, the Government considered that the issue of past abuse was not to be regarded merely as a legal issue requiring resolution through the existing civil litigation process. The Government from the outset took the view that abuse and its victims was a social issue requiring a humane and generous response. The situation called for a process whereby victims of abuse could have their cases heard quickly, with the minimum of formality, have awarded to them reasonable compensation and allow them to get on with their lives. The alternative was years of legal wrangling for many. Many would die before their cases could be heard and many more would fail to establish their cases even if they got a hearing because of the passage of time.
The Government therefore decided that it would proceed with the establishment of the Redress Board in advance of completion of its work by the Commission. Legislation was published in mid-2001 and the Residential Institutions Redress Act 2002 became law on 10 April last. The Act provides for the setting up of the Residential Institutions Redress Board which will make financial awards to claimants who as children were resident in certain institutions in respect of which public authorities had regulatory or supervisory functions and who allege that they were abused while so resident.
In the course of preparation of the legislation a number of approaches to the issue of validation of claims of abuse and consequent injury were considered. In the Act as enacted the validation threshold is deliberately low. The Act provides that a claimant must establish:
(b) that he or she was resident in an institution, as defined, during his or her childhood; and
(c) that he or she suffers from an injury which is consistent with any abuse that is alleged to have occurred while so resident. This will be determined by medical and psychiatric evidence, corroborated by medical experts for the Residential Institutions Redress Board.
Another difficult issue which fell to be considered was how to measure awards. The Government considered that if the majority of claimants and their legal advisers were to be attracted to the scheme then the amounts of awards would have to be, and be seen to be, determined by an independent body. To that end the Government appointed the Compensation Advisory Committee to advise on the appropriate levels of compensation for injuries related to childhood abuse. The group, which was chaired by a Senior Counsel, included experts from the fields of law, psychology, psychiatry and social work. They reported to the Minister in January 2002.
The Committee, in a very detailed Report which has commanded widespread support from all interested parties, effectively recommended a two-step approach to determining the amount of an award—see tables below. First they propose a weighting scale for the evaluation of severity of abuse and consequential injury. A weighting of one to 25 is proposed depending on the severity of abuse. Three subcategories are proposed in determining the weighting to be given for severity of injury. One to 30 relating to medically verifiable illness, one to 30 relating to psycho-social sequelae and one to 15 for loss of opportunity. A claimant to the Redress Board therefore will be awarded a weighting depending on the evidence presented. That weighting will determine the amount of compensation which he or she will be paid. The amount is set out in five bands and varies from up to
50,000 for the less serious cases to
300,000 for the most serious cases. No additional amount will be paid for punitive or exemplary damages. An amount of up to 20 per cent of the award may be made by way of aggravated damages, while an amount to cover reasonable costs of medical expenses may also be awarded. The Government have accepted the Reports which will be implemented by way of regulations.
COMPENSATION ADVISORY COMMITTEE
WEIGHTING SCALE FOR EVALUATION OF SEVERITY OF ABUSE AND CONSEQUENTIAL INJURY
|
Constitutive elements of
redress |
Severity of abuse |
Severity of injury resulting from abuse
Medically verified physical/psychiatric illness
Psycho-social sequelae |
|
Loss of opportunity |
|
|
|
|
|
Weighting |
1-25 |
1-30 |
1-30 |
1-15 |
REDRESS BANDS
|
Redress
Band |
Total weighting for severity of abuse and injury/effects of abuse |
Award payable by way of redress |
|
|
V |
70 or more |
200,000—
300,000
|
|
|
IV |
55-69 |
150,000—
200,000
|
|
|
III |
40-54 |
100,000—
150,000
|
|
|
II |
25-39 |
50,000—
100,000
|
|
|
I |
Less than 25 |
Up to
50,000 |
|
CONTRIBUTION FROM RELIGIOUS CONGREGATIONS
An important factor in the policy approach to past abuse was the role to be played by the religious congregations who were the owners and managers of the institutions now implicated in abuse allegations. The participation of the congregations was important from the viewpoint of the victims of abuse, as it served to assist in the healing process. It was also important from the view of Irish society. If society was to deal with the issue of past abuse in a holistic way then it was important that the congregations be part of the solution. The involvement of the congregations in the compensation scheme also of course had financial implications, although the Government had decided to proceed with the Redress Scheme with or without the congregations.
At the outset of the planning for a redress scheme the congregations indicated that they wished to make, in their words " a meaningful contribution" to the scheme. There followed very protracted negotiations which ended with an agreement that the congregations would pay a total of
128 million as a contribution towards the cost of compensation. This contribution comprises cash and property transfers, including some transfers made since the date of the Taoiseach's apology on 11 May 1999. As a quid pro quo for their contribution the congregations will be given an indemnity by the Government in respect of any subsequent litigation which arises in cases which fall within the terms of the Act. Litigation must be commenced within six years of the signing of the agreement if the indemnity is to apply.
The range of measures which have been taken by the Irish Government have particular implications in the United Kingdom—30 per cent to 40 per cent of those who would wish to access the Commission (and the Redress Board) are based in the UK Prior to the establishment of the Commission, the Department of Education and Science, together with the Department of Health and Children, agreed that it was important that support services be put in place for UK residents. The following services are now in place:
Outreach Officers have been appointed in London (2), Coventry, Sheffield and Manchester. The Outreach services are attached to existing Irish Centres in these cities. The officers provide information and referral services to persons living in these areas. They provide assistance to victims in accessing their records and in preparing for the Commission. They assist also with the counselling and other social needs of victims. In addition, a direct counselling service has been established in London through the ICAP and there is a referral service in other parts of the UK where people are referred to local counsellors.
There remains one key issue for many former residents of institutional care who are resident in the UK—the extent to which an award by the Redress Board will result in the loss of means tested benefits. In Ireland arrangements are being put in place to ensure that such awards are not taken into account for similar benefits. If they are taken into account in the UK, as current law requires, then many victims of abuse in childhood will see no significant improvement in their living conditions and indeed in some cases their living standards may suffer. It is understood that there are procedures in place whereby awards of this kind may be put into trusts and thus avoid the loss of benefits. However, the Irish Government is exploring whether some exemption similar to that applying in Ireland can be devised in the UK. While not wishing to upset the system now in place in the United Kingdom where those on benefits receive awards, the Government consider that there are special factors which might be taken into account by the UK Government. Firstly the scheme is one which is devised by and applying in another jurisdiction. It is one devised to redress an historical wrong, which has left many people so affected that their only option for survival is to access benefits. And it is one which can easily be ring-fenced in legislative measures.
July 2002
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