The past abuse of children in institutional care is an issue which has emerged in the last few years, in a sense like a ghost from our past, and confronted us as a society. It has forced us to reflect on the past attitude of our society to children with multiple disadvantages. It has caused us to reflect on the nature of institutional care. It has stripped away the self-denial of the perpetrators of abuse and of society in general. Most of all it has alerted Irish society to the pain of the victims of abuse and to our duty now to bring redress to them even at this late stage. The debate on the Residential Institutions Redress Bill, 2001, in this House marks a further step by Irish society in facing that ghost from our past. We do so to help the victims and their families as well as society itself towards recovery and to guard against any repetition of such callous abuse of children in care.
This Bill will provide financial awards to people who as children suffered abuse in residential institutions for which public bodies had certain responsibilities for inspection and regulation. It is part of a range of initiatives taken by the Government to address the issue of child abuse which have all the elements of redress – compensation, atonement for past wrongs and helping people to set themselves up again.
The Government, through legislation, established the Commission to Inquire into Child Abuse on 23 May 2000. Health boards now provide dedicated counselling services for all victims of abuse. In addition, my Department and the Minister for Health and Children provide funding for victim support groups which provide information, advice and moral support to those who, as children, suffered abuse.
In the course of this speech I will outline in detail for the House how the provisions of the Residential Institutions Redress Bill, 2001, will operate in practice. Later I will describe the associated work which was carried out by an expert group, which advised me on the appropriate structure to be put in place for the making of the financial awards by the redress board. I also wish to raise the continuing vital role of the Commission to Inquire into Child Abuse and to place the role of the Residential Institutions Redress Bill in the context of the role of the commission.
Approximately 30,000 people born since 1930 were committed by court order to industrial and reformatory schools. The majority of these committals would have occurred up to 1970. After that, the Kennedy report into industrial and reformatory schools brought radical change to this sector and greatly reduced the number of institutions and the number of children placed in them.
The institutions in many respects were characteristic of their time. They were set up for the best reasons in the 19th century. There was an element of enlightened benevolence in their creation as they were intended to provide for destitute children for whom their parents could no longer provide. How and why the institutions lost their mission and became for so many places of fear and abuse is at the heart of the work of the Commission to Inquire into Child Abuse, but it is clear that during the 1930s, 1940s and even into the 1960s significant numbers of children were being placed in unsuitable and unsafe institutions.
In addition to children committed by the courts, significant numbers were also committed to industrial and reformatory schools by parents and the schools often operated as orphanages. One of the deeply regrettable outcomes of this policy of placing children in institutional care was that these children brought with them into adulthood a stigma of criminality even though the majority of children in the institutions had committed no offence. They were there because they were destitute, orphans or born to parents who simply could not provide for them. During the course of the debate in the other House, I was happy to provide explicitly that these children were not criminals and, as adults, should suffer none of the disabilities of people with criminal records. I was also happy to extend the scope of the Bill to include those who, as children, suffered abuse in special schools, orthopaedic hospitals and other medical institutions. Again, in the case of children who were resident in these institutions, the State had a very special responsibility for their care and welfare.
A reasonable question which has been asked by Members of the other House and by commentators generally is why I have brought forward a compensation scheme providing for these particular victims and not for others. The Bill, as published, applied to people who, as children, suffered abuse while resident in orphanages, industrial schools and reformatory schools. I later brought forward proposals, which were accepted, to extend the scheme to certain special schools, hospitals and in certain circumstances the Magdalene laundries. This scheme is intended to address a very particular situation, abuse in residential care. It is not, and was never intended to be, a panacea for every injustice committed on children, of which unfortunately there have been too many.
In May 1999, the Taoiseach, responding to the emerging accounts of abuse in residential care, expressed regret on behalf of Irish society for our collective failure to intervene, to detect the pain of the victims of abuse and to come to their rescue. He did so because the most disturbing allegations have been made about these particular institutions. He did so too because public authorities had formal responsibility, and in most cases statutory responsibility, both for the placing of the children in the institutions and in regulating the operation of the institutions. The State, through these public bodies, to a significant degree replaced parents as the natural protector and care giver of the children concerned. This placed a heavy responsibility on public bodies for their welfare.
The nature of the institutions is also relevant to the decision to pay compensation from public funds to former residents. Unlike, for example, ordinary schools, the institutions removed the barriers which normally separate work, play and sleep and controlled every aspect of the child's life. Residents had little or no say in their lives. In the words of the Kennedy committee: "The children in care are completely dependent on the residential home staff for all the love, understanding, security and religious formation they need, as well as for support in making their way in life."
Given the weakness and vulnerability of a child who has been deprived of parental care in such a situation, the authorities mandated in law to protect his or her interests have a particularly onerous responsibility. Failure on the part of those authorities can carry serious consequences for the children who have no other advocate. We do not know how many of those placed in the institutions are alive today. We do not know how many of them suffered abuse and carried the scars with them for many years. We know, however, that the number is significant. From the number of people who have applied to give evidence to the Commission to Inquire into Child Abuse and cases pending in the courts, it is apparent that there are at least 3,000 people for whom their time in an institution was traumatic.
From statistics in my Department on cases pending before the courts, we know that 10% of cases relate to children who were in the institutions in the 1930s and 1940s, while 26% relate to children who were in the institutions in the 1950s. These people are now in their 60s or older. If they are to enjoy any significant benefit from the awards which will now be made it is important that we press forward with all speed with this Bill and with setting up the scheme. In a comparatively short space of time, we, as a Government and as a society, have put in place a broader range of measures to address past child abuse than any Government or society anywhere. In the interests of many of the former residents of the institutions, this is no time to rest on our laurels.
Some have expressed concern that the setting up of the redress board will prejudice the effectiveness of the Commission to Inquire into Child Abuse. This is based on the view that former resi dents of the institutions will be encouraged to make their claim to the redress board only. I cannot stress strongly enough that the commission and the proposed residential institutions redress board are separate bodies with very different functions. Both bodies are part of the Government's response to widespread public concern about alleged abuse in the institutions. They are being developed to serve the needs of victims of abuse in childhood. Those needs, as expressed to me and to my Department by many former residents of the institutions, include the need to be believed. They also want answers as to why abuse happened to them and who were the responsible parties. As a society, we also need to gather this information in order to ensure that it is never allowed happen again.
The needs of survivors of abuse also include in some, but by no means all, cases, a wish to be financially compensated. I appreciate that concerns about the effectiveness of the commission are expressed from a genuine desire to see that body successfully complete its work. As matters stand, the commission has a very substantial number of applications and many have already been heard. As this Bill has progressed, there is no evidence, to my knowledge, of a drift of applicants away from the commission.
As stated earlier, we must also have regard to the reality of the lives of many of the former residents of the institutions, given their age and, in some cases, infirmity. Waiting for the outcome of the commission's inquiries would, in all likelihood, mean waiting several years before moving to address the issue of compensation. The commission's second interim report signalled the necessity of extending the period for completion of the commission's work for a further three years to 2005. In that time there is no doubt that some former residents of institutions would die. Others with claims for compensation would be forced to bring their claims through the courts with all the attendant stress of that process. It has taken society long enough to recognise the serious injustices that our residential care institutions harboured. We should delay no longer in addressing the needs of those who, as children, were placed in these institutions.
With regard to the detail of the Bill and the procedures for making applications, the Bill provides for the establishment of an independent redress board appointed by Government. It is likely that a person with legal expertise, possibly a senior or retired judge, will chair the board.
The role of the board is specified in section 5. It will make awards in accordance with the Bill that are fair and reasonable, having regard to the unique circumstances of each applicant. It will make all reasonable efforts to ensure former residents of institutions will be aware of its function to make awards. The intention is to ensure people are made aware of their entitlement to compensation if abused in residential care. The board will also have regard to the need to deal first with applicants who are elderly or in poor health and will be able to provide an interim payment in some cases. Essentially, the objective of these provisions is to ensure the elderly and infirm can get as much benefit as possible from their awards. The board will also have a general duty to ensure its hearings are conducted as informally as possible.
Detailed criteria for awards, including a schedule of awards for different kinds of abuse and its effects, will be set down by ministerial regulation and laid before the Houses. This approach ensures greater objectivity in determining the amount of monetary compensation and greater consistency generally of awards. It will also provide greater transparency in the award making system and allow claimants a better opportunity to know in advance the likely scale of an award.
In August last year I appointed a committee of experts to advise me on compensation amounts for abuse in childhood. The committee was chaired by Sean Ryan, senior counsel, and included Dr. Helen Cummiskey, Dr. Marion Gibson, Professor Desmond Greer and Professor Martin McHugh. It was drawn from the areas of law, social work, psychiatry and psychology and brought to its task a wealth of knowledge and experience. Following a broad consultation process, both in this country and in England, the committee reported to me in January 2002. I immediately published the report. The report entitled, Towards Redress and Recovery, has been broadly welcomed by the victims' support groups and will provide a reasonable basis for the preparation of regulations for the board.
The committee reached five broad conclusions: the injuries received by a number of victims of abuse are among the most serious kinds of personal injury known to the law – many survivors not only lost their childhood, but much of their adulthood also; no form of abuse or consequential injury is reducible to mathematical calculation; there is an almost infinite variety of combinations of abuse and its affects; the nature of the injury varies in severity, both in terms of the abuse itself and in respect of its physical and psychological consequences; and some system of guidelines or weighting is desirable in the search for a degree of consistency in the level of redress – it is also desirable in helping to speed up the process of determining individual cases and to make the amount of redress more predictable, thus assisting the informal settlement of applications.
The committee, having reviewed international precedents, concluded that the best guidance as regards amounts of awards is to be obtained from within the State by reference to the level of awards made by the courts for pain and suffering and loss of amenities arising from serious personal injury. In general, the awards recommended are higher than those applied in other jurisdictions. The committee concluded that there are four basic areas to be considered in deciding on an award: the severity of the abuse itself; the extent of the physical and mental injury suffered by the applicant; the psycho-social sequelae of the injury; and the loss of opportunity resulting from the abuse and its effects. The report of the committee states that the best way in which all four areas may be taken into consideration is to apply a weighting scale in which the redress board, on the basis of the evidence, will determine the weighting to be given in each particular case.
The compensation provided for in the Bill is through an ex gratia scheme. It involves no finding of fault and no declaration of liability. It is a scheme designed to address the fact that the institutions concerned, in many ways, departed from the normal requirements of child care. It acknowledges that, because of this, many who were in institutional care have, through much of their lives, carried serious psychological scars. It seeks to provide reasonable financial compensation for that injury. This approach has caused concern that awards will be made on the basis of untested evidence. This is not the case. Any person before the redress board must first establish that he or she is suffering or has suffered some significant injury, physical or psychological. Second, he or she must establish that that injury is consistent with the abuse as alleged. Both will involve significant medical and psychiatric evidence and the board may have assessments carried out.
Concerns were raised during the course of the debate as regards the necessity of providing any accused persons with an opportunity to defend their reputations. While I have already said in the other House that it was not the intention of the Bill to create a court of law by another route, I also said I felt it is the function of the Commission to Inquire into Child Abuse to deliberate on issues such as liability and responsibility for abuse. Ultimately, it is a matter for the courts to make findings of guilt in relation to particular acts of abuse. However, I was conscious of the importance of this issue for many people and their desire to have a hearing if accused of abuse. In order to allay the fears of those who feel justice may suffer if they are not allowed a hearing and allow those who may face accusation an opportunity to defend themselves, I have made provision in the Bill.
In making these provisions I emphasise that these matters will remain confidential and that an award to an applicant does not mean that a corresponding person against whom allegations have been made is guilty. The board will now be required to inform accused persons and managers of institutions where allegations of abuse are made. The accused person may, as he or she wishes, make written representations to the board and apply to it to make oral representations. Inevitably, there may be a conflict of evidence in such cases. The amendments provide that, in that event, medical evidence will prove decisive. If the medical evidence establishes injury consistent with abuse as alleged, compensation will be paid in accordance with the scheme laid down in regulations.
The Bill provides for an appeal by a claimant against an award to a review committee. The appeal will be a full re-examination of the claim. Some have argued that claimants should have the right of appeal to the High Court. Given the nature of this compensation scheme, I do not agree. Involvement of the court in the scheme would blur the distinction between formal court proceedings and the compensation scheme and significantly dilute one of the main benefits of a compensation scheme – expeditious resolution of claims.
In establishing this compensation scheme the State is providing survivors of abuse, who would experience very significant delays and uncertainties in civil litigation, with a quick and effective alternative to civil litigation. Essentially, a claimant will, through the compensation scheme, be offered a quick and accessible route to reasonable compensation for abuse and its resulting damage. This route will have little of the formal procedures of the court. Further, the level of inquiry made by it into the facts of his or her history will be considerably less onerous. In the circumstances, it is proposed that the scheme will stand alone outside the normal litigation process.
It must be stressed that the proposed scheme in no way interferes with a potential claimant's right to bring his or her claim to court. A potential claimant need not access the scheme at all. If he or she does, once an award is made, it will be a matter for the claimant to either accept or reject it. If he or she rejects it, he or she may pursue his or her civil claim in the normal way through the courts. Where a claimant accepts an award, he or she will be required to enter into an agreement whereby he or she waives any right of action he or she might otherwise have had, arising out of the same circumstances, against the State or any party who has contributed to the scheme.
The Government has agreed in principle to a set of proposals which will see religious congregations contributing €128 million to the scheme for people who suffered while in institutional care. The agreement with the congregations came after a lengthy period of discussion, including direct meetings between representatives of the congregations and myself. Discussions on this issue opened over a year ago when the congregations stated that they wished to make a meaningful contribution to any scheme of redress for people who spent large parts of their childhood in institutional care. The terms now agreed in principle represent a reasonable outcome, which will allow all relevant parts of Irish society to make meaningful redress for past wrongs through which children were injured.
The terms of the agreement include a cash payment of €38 million, of which €12.7 million will be placed in an education trust for former residents of the institutions and their families; property transfers totalling €80 million – this amount will include property transfers which have been or are being made since the Taoiseach, on behalf of the State, made an apology in May 1999 to victims of institutional child abuse, with further transfers up to the total amount taking place within the next three to five years; and €10 million in counselling, record retrieval and pastoral services for people in need. The religious congregations have stated that they will also continue their co-operation with State and voluntary bodies in relation to property transfers for services to people in need. I believe that the participation of the congregations in the proposed redress scheme represents a significant part of the healing process for both the people who were damaged as a result of childhood experiences while in the care of the State and for the congregations themselves.
The Bill before the House is unprecedented, not just in this jurisdiction. The measures taken by the Government in respect of past abuse are more advanced than in any other jurisdiction of which we are aware. Our willingness as a society to address comprehensively the issue of past abuse, to some small extent at least, makes amends for our past failure to prevent the abuse. It is also a demonstration that the Taoiseach's words in May 1999 were not an empty formula but a heartfelt expression of our regret at a dark episode in our past.
There are concerns as to past abuse in other countries such as Canada, the United Kingdom and Australia. These all have significant and ongoing measures and proposed measures to address the problems experienced by people who suffered abuse in childhood. The interested parties in other jurisdictions are watching this Bill closely. The decisions we take will have a very direct influence on the lives of the recipients of compensation and will also inform and guide other countries in their struggle with past child abuse.
It is important that we recognise that in this Bill the Government is going beyond the current models of practice to take a new initiative to address the needs of affected people. We have examined and dealt with the legal issues arising and we have committed ourselves to meet the financial burden which this Bill will impose. I hope all sides of the House can support this Bill.
As we commence Second Stage of the Bill in this House, I look forward to hearing the contributions of Senators. The development to this point of the proposals for the redress board has taken place in close co-operation with those for whom it will be most immediately relevant – the victims themselves – both through the individual victims groups and through the national office for victims of abuse. Their contribution to date has been vital in ensuring that the provisions in this Bill are aimed towards those who need it most.
This is an important Bill, which deserves widespread support. I commend it to the House.