JOINT COMMITTEE ON EDUCATION AND SCIENCE debate -
Wednesday, 13 Oct 2004

Residential Institutions Redress Act 2002 (Additional Institutions) Order 2004.

Chairman

I warmly congratulate Deputy Hanafin, the new Minister for Education and Science, on her elevation and wish her success in her role. I am sure she will have every co-operation from the members of this committee. I congratulate Deputy Enright on her reappointment as Fine Gael spokesperson on Education and Science. Deputy Stanton has been elevated to the Fine Gael Front Bench. We wish them well. I welcome the Minister's officials to the meeting.

This meeting has been convened to consider a motion concerning a draft order entitled Residential Institutions Redress Act 2002 (Additional Institutions) Order 2004, which was laid before Dáil and Seanad Éireann on 4 October and referred for consideration to the joint committee by both Houses last week with a requirement to report back to both Houses not later than 19 October. A copy of the text of the proposed draft order, together with a briefing note from the Department, has been circulated to members. Following the meeting a draft report will be prepared and put in members' pigeonholes within an hour. The draft report will be for approval at tomorrow's meeting. This is a requirement for reporting back to the Dáil and Seanad. The Minister's speaking note has also been circulated to members.

Minister for Education and Science (Deputy Hanafin)

I thank the Chairperson and members of the committee for the opportunity to speak today on the proposal for the addition of 13 further institutions to the Schedule of the Residential Institutions Redress Act 2002. I spent two and a half very enjoyable and valuable years as a member of this committee. I was the party Whip on this committee up to February 2000 so I fully appreciate the important work of the committee and I look forward to working closely with the members in the coming years. We can benefit from working closely together.

Before I deal with the proposal that is the subject matter of today's meeting, it is opportune to reflect on the fact that since 1999, when the Taoiseach, on behalf of the State, delivered a formal apology to adults who in their formative childhood years were subjected to abuse while in residential institutions, much has been done to attempt to redress the wrongs that were committed. One of the main elements of the Government's initiatives in this area was the enactment of the Residential Institutions Redress Act in 2002, followed by the establishment of the redress board in December of that year. As members are aware the purpose of the Act, and the function of the redress board, is to provide a mechanism to make financial awards to victims of abuse, to assist them in their recovery and enhance the quality of the remainder of their lives.

It also provides an alternative to their having to pursue traumatic civil court cases to obtain compensation for their injuries. While the civil courts operate on the basis that a plaintiff must prove his or her case on the balance of probability, the redress board operates on a much lower threshold of proof and does not make a finding of guilt in respect of an individual or an institution. However, notwithstanding that the redress board operates on a lower threshold of proof, it makes awards which are in line with High Court awards made in personal injuries cases.

It is useful to outline to the committee the actual process that takes place once an application is lodged with the board. In some cases the board will make a settlement offer to an applicant solely based on the victim's written application. In the event of an applicant not being satisfied with the offer, the person can opt to pursue an oral hearing of his or her case. If a person decides not to accept a settlement offer and proceeds to an oral hearing, that hearing takes place entirely independently of the settlement talks. Members of the board who hear the case are not informed of any settlement process. In effect, this amounts to an entirely new hearing of the case. Following the hearing, the board notifies the applicant in writing of the award on offer and the applicant has a period of one month to accept the offer. The applicant can use this period to reflect on the offer and consider legal advice received from her or his legal representative on the merits of the award.

In the event that an applicant is not satisfied with an award, the person is entitled under the Act to submit the application to the redress review committee, which will review the entire case. The review committee may uphold the amount of the award, or increase or decrease the amount. The review committee stage of the process is, effectively, the final option available to an applicant under the redress Act process. However, an applicant still retains the right to pursue a case through the courts.

I consider that the success of the board can be gauged from the number of applications it has received and the number of applications that it has dealt with to date. Up to the end of September the redress board had received 4,517 applications, and applications continue to be received at a rate of slightly less than 50 per week. At the end of September the board had completed the process in approximately 1,900 cases and the total amount of awards paid out was approximately €141 million. The remaining 2,600 cases or so were at various stages of the process. The average award stands at €77,000.

On the basis of information available from the Redress Board, 51 cases out of the total of 1,900 have gone to the review committee, while in only three cases have applicants to the board gone through all stages of the process without accepting an award. These figures clearly establish a very high satisfaction rating with the work of the board and the level of awards it is making. Furthermore — on the basis of information available to my Department — since the board was established in December 2002, only a handful of cases of institutional abuse have been brought to a conclusion in the courts. It is clear from these figures that had the board not been established, thousands of former residents who would have been forced to take the legal route would have been waiting many years for their claims to be dealt with by the courts.

As regards the proposed addition of the 13 institutions in question to the Schedule to the 2002 Residential Institutions Redress Act, the position is that section 4(1) of the Act provides for the insertion in the Schedule of any industrial school, reformatory school, orphanage, children's home, special school established for the purpose of providing education services for children with a physical or intellectual disability or a hospital providing medical or psychiatric services for people with a physical or mental disability or mental illness in which children were placed and resident and in respect of which a public body had a regulatory or inspection function.

It is important to emphasise that before an institution can be added to the Schedule, it is necessary to confirm that it is an institution "in respect of which children were placed and resident and in respect of which a public body had a regulatory or inspection function", as specified in section 4 of Act. The position regarding the 13 institutions in question is that they have been identified as qualifying for inclusion in the Schedule, in that they were institutions in which children were placed and resident and it has been possible to confirm that the State had a regulatory or inspection role in respect of them. In some cases that inspection or regulatory role was the responsibility of the Department of Education and Science, while in respect of other institutions included in the draft order, the necessary confirmation has been received from the Department of Health and Children.

It is the case that, had the information now available in respect of these institutions been available at the time the original Act was going through the Oireachtas, there is no doubt that they would have been included in the Schedule at the time. It is clear from discussions that took place in the Houses at the time that it was always intended that additional institutions identified as being eligible for inclusion could be added to the Schedule by means of ministerial order.

It is not possible to state with certainty the additional number of claims to the Redress Board that will result from the inclusion of the 13 additional institutions in the Schedule. Records held within the Department in the past 24 months and discussions with solicitors for the relevant congregations indicate that there are less than 100 potential Redress Board applications pending their inclusion. However, it should be borne in mind that an increased number of claims, of which the Department is currently unaware, might arise when the 13 additional institutions are added to the Schedule. Uncertainty as to the number of applications that may be received by the board should not, on its own, act as a barrier to the inclusion of the institutions in the Schedule. It appears that, the Oireachtas having established it, it is the task of the board to decide on the legitimacy of claims relating to all institutions, not the function of my Department or this committee.

All institutions which have been brought to the attention of my Department are not included in the proposed order. In some cases this is due to the fact that consideration is ongoing in respect of them while in others, no evidence can be found to indicate that the State had a regulatory or inspection role in respect of them. In the circumstances, it is possible that a further order proposing the addition of some more institutions to the Schedule may be required in the future.

I am cognisant that the Redress Board cannot accept applications with effect from 15 December 2005. It is, therefore, my intention that, if it transpires that a further order is required, such an order would be brought before the Houses of the Oireachtas prior to the summer recess in 2005. This would allow sufficient time for persons who may be affected by any such order to make an application to the board prior to the deadline of 15 December 2005.

I thank the committee for inviting me here today and will be glad to deal with any questions members may wish to pose.

Deputy Enright

I welcome the Minister and congratulate her on obtaining her new position in which I wish her well. I look forward to constructive debates with her, both here and in the Dáil.

I do not have a difficulty with the proposal the Minister has placed before the committee. I had inquired about the inclusion of a number of institutions in the Schedule. The Minister has stated there are fewer than 100 pending new claims. I presume, therefore, that, if there are no further such claims, the additional costs will amount to €700,000 or €800,000. It is understandable that we do not know how many claims will be made. However, this highlights the fact that the deal reached with the religious orders was put in place without our knowing the eventual potential cost to which taxpayers would be exposed. That is a pity but it is not a matter for discussion today.

Is the Minister aware of whether the three cases in which awards were not accepted went to court? What is the position when someone decides not to accept an award? The definition in the Schedule states "in respect of which children were placed and resident and in respect of which a public body had a regulatory or inspection function". Does the Minister have any intention of introducing, at any stage, legislation regarding people who attended regular day schools who were the victims of abuse? The argument is made that the State was not acting in loco parentis in such cases. However, I find that difficult to accept and have come across a large number of cases of people who have not been included. Would the Minister be willing to give consideration to such cases?

Deputy Gogarty

I also welcome the Minister who I understand is eminently qualified to be Minister for Education and Science. It is my view that she will make a good Minister and I hope she will take on board the contributions of Opposition Members where she deems them to be constructive.

I welcome this first ministerial order and, like Deputy Enright, have no objections to it. I acknowledge and appreciate that this is possibly the first of many orders, particularly if the Minister is willing to include more institutions if they are deemed to be places where children were placed and resident and, as specified in section 4, in respect of which a public body had a regulatory or inspection function.

I have a question to ask, purely because a constituent of one of my party's councillors submitted a letter relating to the St. Mary Immaculate School for Deaf Boys. This school may or may not be specified under section 4 of the Act and I am seeking clarification regarding why it has not yet been included. Some deaf men would not be entitled to make applications to the Redress Board because the institution they attended as boarders is not covered by the Act, while the school they attended as day pupils is covered. However, as day pupils they are not entitled to make applications. Concerns have arisen as a result. It would be of benefit if official clarification was provided regarding why the St. Mary Immaculate School for Deaf Boys, for example, has not yet been included and whether it could possibly be included under section 4.

I also have a general comment on the work of the Redress Board, a matter I raised with the Minister's predecessor on a number of occasions. While the board has been beneficial to many survivors, there is an anecdotal suggestion — it is anecdotal because of the secrecy involved — that awards are not always in line with court awards. There is no way of discovering whether this is the case and that is part of the problem. If a way could be found to maintain and protect the secrecy element and people's identities while at the same time making public the deliberations on the awards — possibly under the terms of the Freedom of Information Act at a later stage — it might allow for some comparison to be made. A number of survivors have approached me and stated they understood persons X and Y to have received particular amounts. Obviously, someone is breaking the terms relating to awards by divulging the amounts involved.

The Department could be seen to be hiding behind the secrecy element because there is no transparency. Although this is a relatively less painful way of dealing with abuse cases and the burden of proof is a lot lower, some believe they are not being given that to which they are entitled. They also believe the court route is both expensive and lengthy. It would be beneficial to introduce some degree of transparency and hold a review of the criteria used for making specific awards. Does the Minister plan to review the criteria or examine ways to make the workings of the Redress Board more transparent without divulging the identities of those concerned?

Deputy Crowe

I welcome the Minister and congratulate her on her appointment. I have a similar difficulty to Deputy Gogarty who referred to one of the schools included in the Schedule. I am not sure whether St. Joseph's on the Navan Road is covered by the Redress Board. I am aware of cases involving people who attended the school as day pupils rather than as residents.

The problem one faces when one is approached relates to what actually happened to the person in question and the secrecy surrounding the issue. It is very difficult to obtain information and many of those coming forward do so reluctantly. Are cases involving day pupils covered under the Act? Responding to a question on this matter from my colleague, Deputy Ó Caoláin, the Taoiseach expressed concern that he did not want to open up the redress process to day pupils at schools.

My question relates specifically to institutions which had both residential and day pupils. What is the position as regards the latter group under the Act? If they are not covered, why are distinctions made between children? Some of the children affected returned home to their parent or parents every day. During the period in question, it was difficult for a parent to raise a child alone, particularly if the child had an impairment, and there were strong societal pressures to place such children in homes and forget about them. This attitude was indicative of the times.

Should one child be treated differently from another? A child who returned to his or her own home after school will scream inside in the same way as a child in a residential institution. While I can understand the reason the Taoiseach — I recognise he apologised on behalf of the State — may be reluctant to open up the process to everyone, given that the issue relates to damaged children, we must also consider children who attended schools as day pupils.

I note the Minister's reference to the high satisfaction rate with the work of the Redress Board. This does not reflect what I am hearing from people involved in the process. Although the figures suggest a high satisfaction rate, one needs only to talk to people who have been through the process to discover they are far from satisfied. This raises one of the problems with the process, namely, that many of those involved are prohibited from talking about their cases. The secrecy surrounding what happened to them continues because they are not allowed to talk about the matter they have brought before the Redress Board. This adds to their pain.

Although I accept the Minister's comments and that the figures may suggest otherwise, those involved in the process have expressed to me their dissatisfaction with the way the Redress Board operates. Their concerns differ but many of them want to have their day and tell their story. They tell me of the length of time they have waited to do so. In the initial stage of this process, people talked but the slow pace of the process is affecting people.

I am conscious of the statement by the previous chairman of the Redress Board, Ms Justice Laffoy, that the board did not have sufficient resources. People want to tell their story and do not want the process to drag on indefinitely. The longer it goes on, the harder it is for the victims, many of whom have children and have had their lives destroyed. This process has reopened an issue which had been deeply buried. I do not detect happiness among those affected. This is not a criticism; I am merely reporting what has been related to me. While other members may have a different view, I do not believe the level of satisfaction is high.

Deputy Curran

I welcome the Minister and do not propose to make life difficult for her. I had not intended to raise this issue but I wish to respond to Deputy Crowe. Only a small number of those who have been before the Redress Board have spoken to me about their personal experiences with the board. My experience has been different from that of Deputy Crowe because the individuals I have met would never have taken a case had it not been for the confidentiality and ease of the system which enticed them to come forward in the first instance. Confidentiality was critical to the small number of people involved whom I met. In one particular case, I do not believe anybody in the family of the individual in question is aware of the person's involvement in the redress process, which is what the person wants.

While other members may have had contact with larger numbers of those involved, it is difficult to generalise. Listening to Deputy Crowe, it struck me that those individuals who have spoken to me about their personal involvement in the process, while a relatively small sample, would not have embarked on this road without the assurance of confidentiality. For this reason, confidentiality must be paramount irrespective of whatever changes or recommendations we make.

The figure on the number of people who have come forward is greater than we had anticipated, which is a reflection on the system. While no one could argue that the redress process is not painful, one of the key factors for those who have engaged with it has been its confidentiality. Certain people may wish to tell their story but confidentiality has been paramount to the individuals I have met.

I understand the decision to add 13 institutions to the Schedule will indemnify them against future claims. Is that correct? The religious institutions involved in the initial deal made a contribution. Will the 13 institutions added to the Schedule also make a contribution or will the State indemnify them?

Deputy McEllistrim

I also welcome the new Minister and wish her well in her new portfolio. As a teacher, she has intimate knowledge of the problems facing education and I am sure she will work hard to address them.

Will the period in which applications must be made be extended? Will the Minister examine the costs involved in adding a further 13 institutions to the Schedule? The average value of compensation payments is €77,000. Will the Minister provide a cost estimate of the decision to add 13 further institutions? Although we do not know the number of cases, it is possible to make an approximate estimate of the likely cost of the decision. How long will it take to notify former residents of the institutions in question who may wish to take a case to the board?

Deputy Andrews

I do not have a question but wish instead to formally congratulate the Minister and welcome her to the joint committee. We, in Dún Laoghaire, are delighted to have a Minister from the area. I am sure all the outstanding small projects will be nodded through now that she has been appointed to this position.

Chairman

I wish to add a couple of points. Deputy Gogarty referred to the St. Mary Immaculate School for Deaf Boys, in respect of which I also received representations. In addition, I also received representations regarding Bethany Home in Dublin which, as far as I am aware, was a Protestant home. I have received letters from people in England in respect of that particular institution. I understand that the information relating to the regulatory or inspection role to which the Minister referred did not show up anything in respect of Bethany Home. Should further information become available, can these institutions be included in the Schedule before 15 December 2005? There may be others which might be under continuing investigation.

Do any of the institutions being added to the Schedule come under the auspices of some of those religious institutions that have already signed the indemnity agreement? If not, what are the implications?

Deputy Crowe referred to the process and I have also received representations from people who stated that they were not completely satisfied with it. Obviously, however, it is confidential which is important. I am aware that there are proposals regarding the in camera rule in family courts and the possibility of making a certain amount of information available without invading people’s privacy. Would it be possible to do the same in respect of the Redress Board? For example, could someone be designated to gather information on behalf of the public and provide very general information without naming people or breaching confidentiality?

Deputy Hanafin

I thank the Deputies for their kind comments and good wishes. I am not sure that a good teacher necessarily makes a good Minister for Education and Science but I will try.

As regards the cases generally, it is important to note that people get the opportunity to tell their stories. They can opt for hearings and then relate their experiences. Deputy Crowe stated that they do not get a public hearing because of the confidentiality clause and I accept that some people perhaps find that unsatisfactory. Were these people to go down the court route, I suspect they would still be waiting and, particularly in light of their ages and the fact that much time has passed since they were in the institutions, might never get to tell their stories.

It would be difficult to make it any more public than it is at present, not just in terms of protecting the victims themselves but also because allegations are being made, which may be unsubstantiated, against named people. This body is not in the business of finding, as a matter of fact, against individuals. However, the board produces its own report and attempts to provide as much information as possible without being specific in respect of individuals.

It is significant that there are only three cases in which people did not accept the awards. As I outlined earlier, there are a number of different situations and circumstances in which they can go down a different route. Deputy Enright asked a specific question about the three people who did not accept awards. There is one that we know of who has gone to the courts. All three have the option of doing so.

All of the 13 institutions being added to the Schedule are covered by the indemnity of the original agreement. They are all institutions run by the same orders. Had we not obtained that money from the orders, the State would be footing the entire bill. It is important to continue to recognise that as well.

We are awaiting confirmation from the Department of Health and Children regarding the inspection role in connection with the school for deaf boys. Material was recently received from solicitors for the congregation. The matter is the subject of ongoing consideration.

Deputy O'Sullivan is correct in respect of the Bethany Home. There is no record of a regulatory or inspection role in respect of that institution so it would not qualify under the terms of the Act.

St. Joseph's School for the Visually Impaired in Cabra is already included in the Schedule.

Deputy Crowe

Is it?

Deputy Hanafin

Yes. It is not my intention to include day schools in this scheme. There is a difference between situations where parents willingly place their children in day schools and the State places children in residential care. Children attending day schools can go home to their parents in the evening. However, in the other instance, the State and the institution in question have complete control of children, 24 hours a day, seven days a week. In such circumstances, the State acts in loco parentis and has an obligation. The type of abuse we are unfortunately hearing about generally would have happened in the residential setting. If, however, there are people who suffered sexual abuse while attending schools as day pupils, there are ways in which they may proceed. For example, they can go to the courts. This is particularly relevant since the Statute of Limitations has been amended to ensure that if they were not in a position within the original three-year period, especially if they had suppressed memories, they can now take a case. In any other instances where people were abused, they should go down the usual route of reporting it to the Garda and obtain legal advice to see if they could obtain any other compensation in the courts, etc., in respect of that abuse.

As regards the particular scheme before us, I wish to draw a clear distinction between the responsibility of the State for children who attended day schools and who returned home to their parents, who were still responsible for them, and children who were in residential care. It is not my intention to extend the terms of this scheme beyond the residential element.

A number of members inquired about the costs involved with the inclusion of these additional 13 institutions. The average cost is €77,000 and one could anticipate a total cost by using this figure. However, we do not know how many other cases may exist. We are only aware of 100 claims but there may be others.

Deputy Crowe stated that the awards did not match those that would be handed down in the High Court. The board has an obligation to ensure that such awards are in tandem to those that would be handed down in the High Court. One award was made in the amount of €300,000, which is probably in line with what the person would have received in the High Court.

The board has also ensured that people can go through the process without having to undergo the trauma of cross-examination in the courts. This is of particular importance to people who have already suffered and who do not want to have to face cross-examination. It is a compassionate way of dealing with a dreadful problem. While the cost of the process and the additional 100 claims is a consideration for the Government, it is not the main one in this instance. The most important consideration is that these people can obtain redress in a compassionate way.

In respect of notifying people that these institutions are being added, the 2002 legislation places an obligation on the board, through public advertisements and direct correspondence with persons who were residents of institutions, to ensure that people are made aware of the position. I expect that it will act responsibly in this regard.