Mother and Baby Institutions Payment Scheme should have two-track approach to the payment of redress, Commission says

Significant changes are required the ‘General Scheme of a Mother and Baby Institutions Payment Scheme Bill’ to ensure compliance with human rights and equality standards, the Irish Human Rights and Equality Commission (‘the Commission’) said today, in a Submission on the General Scheme of a Mother and Baby Institutions Payment Scheme Bill.

We recommend that the Payment Scheme provide for a two-track approach to the provision of redress, where survivors would have the option of applying to either track.

Each track would similarly include a payment for the historic wrong of being resident in a Mother and Baby Home or another relevant institution for any length of time, which impacted on the mother and child bond.

Track One would include a modified version of the Government’s proposed time-based approach to payment, while Track Two would instead include an individualised assessment of harm.

There is the potential for the Payment Scheme to adopt an adversarial approach to individualised assessment. To avoid this and to negate the possibility of re-traumatisation of survivors, it is important that survivors have the option of applying for an award under Track One.

However, alongside this, an option should also exist to pursue an individualised payment based on their informed choice. For some survivors, financial payments for specific harms experienced, alongside a general payment, would recognise the different forms and levels of harm that survivors experienced.

Furthermore, survivors should be consulted with before setting out the payment rates, and be supported throughout the application process. The addition of a two-track model to the Payment Scheme does not diminish the State’s obligation to provide an effective and appropriate remedy, which is proportional to the gravity of the violations and the harm suffered.

The Commission recommends the removal of the six-month length of stay requirement for a person who was resident as a child in a relevant institution to be eligible to apply to the Payment Scheme. The six-month requirement is not an indicator of whether a child suffered harm, such as from the forced separation of mother and child. We are also of the view that all survivors who were resident as a child in a relevant institution for any length of time should be eligible to apply to the Scheme.

Other recommendations include:

  • Removal of the requirement that a person must have been resident in a relevant institution for a minimum of six months to be eligible for an enhanced medical card or, if not resident in Ireland, a health support payment.
  • The legislation should directly reference the harms it intends to redress, in particular the loss of the mother and child bond.
  • The Payment Scheme should not be established on an ‘ex gratia basis’ and any provisions seeking to deny or limit liability by the State or other private entities should not find expression in the legislation or Payment Scheme.
  • Removal of the requirement for survivors to sign a legal waiver to any right of action before accepting a payment.
  • All applicants to the Payment Scheme should be provided with financial support to avail of independent legal advice and representation when making a decision to apply, during the application process and at the point of accepting a redress payment.
  • The removal of the five year duration for the operation of the Payment Scheme. The Scheme should remain open to applicants.
  • Importance of raising awareness of the Scheme amongst survivors and need for the provision of information to survivors to be in accessible formats.

 

Chief Commissioner Sinéad Gibney said:

“While we welcome the Government’s commitment to redress, significant work is required on the design of the Payment Scheme to ensure it adequately and appropriately reflects the needs and experiences of survivors. Ultimately, we need a systemic change in the State’s attitude and responsibility towards anyone who is a victim or survivor of State wrongdoing, overall adopting a more progressive and caring attitude toward those who were resident in these institutions.”

 

ENDS/

For further information, please contact:

Sarah Clarkin, IHREC Communications Manager,

01 8592641 / 087 4687760
sarah.clarkin@ihrec.ie

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Editor’s Note

The Legislative Observations from the Irish Human Rights and Equality Commission is available at the following link: https://www.ihrec.ie/app/uploads/2022/10/Submission-on-the-General-Scheme-of-a-Mother-and-Baby-Institutions-Payment-Scheme-Bill.pdf

The Commission has published these legislative observations in line with its mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, and to make recommendations to the Government to strengthen and uphold human rights and equality in the State.

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.

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