Difficulties with the Proposed Mother and Baby Homes Redress Scheme

By: Sean Beatty BL

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This short piece attempts to synopsize the difficulties present in the Mother and Baby Institutions Payment Scheme Bill 2022 which is currently making its way through the Oireachtas.

By way of background, when the Final Report of the Mother and Baby Homes Commission of Investigation was judicially reviewed in 2021, the settlement reached included a statement which would be appended to the Report. It recognised that “survivors do not accept the accounts given in the Final Report… as a true and full reflection of the oral and documentary evidence they gave”. This is followed by a list of 64 paragraphs which can no longer be relied on. The State has expressed that the Redress Scheme is a part of the measures being used in “responding to the report”. The Redress Scheme is therefore based on a report which the State itself accepted was flawed.

Some of the main issues in the Bill are:

  1. It omits over 40% of survivors, including children who spent fewer than six months in an institution and those who were boarded out. The six-month requirement is arbitrary and permits no consideration of context: a child resident for 180 days receives €12,500. A child resident for 179 days receives €0.
  2. The Bill provides no compensation for forced and illegal adoptions, forced labour, unlawful vaccine trials, abuse as an adopted child
  3. The term “work-related payment” used by the Bill (s.2) does not adequately describe lived experiences. It should be substituted for “forced labour”.
  4. The “work-related payment” levels are inadequate and must correspond to the wages survivors should have earned at the time and be linked to average industrial wage.
  5. The Bill does not count a “temporary absence” of 180 days or more (s.19(2)(b)(ii)). A survivor may have excellent reasons for having left the institution and returning, such as escaping for 180 days before being caught and returned. That period of 180 days could not reasonably be separated from their time in the institution.
  6. The enhanced medical card proposed in the General Scheme has been replaced by health services without charge and is available for anyone resident for 180 days (s.13(4)). This residency requirement is irrational and should be removed.
  7. Survivors resident outside of Ireland are entitled to a payment of €3000 instead of health services without charge (s.13(5)).This figure is not reflective of the value of the services available to those receiving health services without charge.
  8. The Bill does not expressly require that the Redress Scheme be advertised abroad (where many survivors reside) and imposes a subjective standard in assessing whether this duty has been discharged: the Chief Deciding Officer must hold “a public information campaign, as he or she considers appropriate to promote awareness” (s.9(1)(f)).
  9. The Bill requires survivors to waive their entitlement to initiate litigation in order to accept payment. This can be contrasted to the Symphysiotomy Payment Scheme.
  10. A survivor will be entitled to no compensation where they have “received an award from a court or settlement in respect of an action arising out of any circumstances relating to the same period of residence in the institution” (s.13(7)). This takes no account of the possibility of a court awarding a survivor a lower amount than they would receive under the Bill. Moreover, litigation may not be directed towards the State, yet the Bill precludes a later claim of compensation from the State.
  11. Payment rates should be in line with the current Personal Injuries Guidelines and other comparable schemes. For example, this includes PTSD payments under the Guidelines: “moderate PTSD” equates to compensation of €10,000-€35,000, whereas “serious PTSD” equates to €35,000-€80,000.
  12. The Bill provides an option, rather than imposes an obligation, that free legal aid be made available to all applicants in circumstances where same is likely to be required in applying for compensation, reviewing or appealing a determination, and in swearing an affidavit that could be required of them.

For further information, see the work of the Irish Council for Civil Liberties:

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