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Bogged Down By Bureaucracy [History of Commission and Redress Board]
Irish Times Sat, Sep 06, 2003

The resignation of Ms Justice Mary Laffoy has highlighted the rows and delays that have hampered her commission, writes Liam Reid

Barney O'Connell was eight when he was taken into care at Artane industrial school, in north Dublin, in the 1950s. He says that one Christian Brother tried to rape him and that he saw a boy fall to his death from a balcony while he was being chased by another brother.

"James" was sexually abused by his teacher, Donal Dunne, in a south midlands national school in the 1970s. Ten years later he told politicians and officials, to try to have Dunne removed from teaching. The Department of Education and Science took no action against the former Christian Brother.

John Prior spent 14 years in children's institutions during the 1950s, mostly at St Joseph's industrial school in Tralee, Co Kerry, where he says he was sexually abused continually and where a friend, Joseph Pyke, died after a vicious beating.

All three cases, which received much publicity five years ago, were part of the emerging story of child abuse that led to the establishment of the Commission to Inquire into Child Abuse.

Dunne's case led to debates in the Dáil about serious failures at the Department of Education. Victims' representatives also met the then minister for education to seek an independent inquiry. Prior and O'Connell became some of the first people to make public claims about sexual abuse in industrial schools. They both made significant contributions to Mary Raftery's ground-breaking investigation in the RTÉ documentary series States Of Fear.

In May 1999, a fortnight after the programmes were broadcast, the Taoiseach apologised to victims of institutional child abuse, physical and sexual, and promised an inquiry and support for those who had suffered. Ms Justice Mary Laffoy was soon appointed to chair the inquiry.

The three men were hopeful that their allegations would receive a full independent investigation. Nearly five years on, however, with Justice Laffoy's resignation from the inquiry on Tuesday and the Government proposing to investigate only sample cases rather than all allegations of abuse, there is now serious doubt about whether they will ever get to tell their stories to an independent inquiry.

All three reacted similarly to the judge's resignation: with anger, disappointment and frustration. They have all made statements to the commission but are not among the handful of people whose cases have made it as far as full hearings.

"I want to stand up and tell my story," says O'Connell. "I've been waiting 40 years to do that, to show that I am not making this up, that this happened." Amid the anger, defensiveness and recrimination that have marked the debate since Justice Laffoy's announcement it has almost been forgotten that more than 1,700 people have been waiting nearly five years to have their claims heard in an independent setting. The claims include allegations from as late as the 1990s. Some allege that politicians and senior civil servants, some of whom are still in prominent positions, failed to act on complaints of abuse.

Cases include those at Madonna House in Blackrock, Co Dublin, and Trudder House, in Newtownmountkennedy, Co Wicklow, as well as complaints that the Department ignored suspicions about abuse at children's homes it was responsible for in the 1980s, such as Finglas Children's Centre, in north Dublin.

When the Laffoy Commission was announced, in May 1999, the hope was that it would establish once and for all the level of physical and sexual abuse in children's institutions - and explain how it was able to continue unchecked. The Government and the religious orders that ran many of the institutions pledged their full co-operation. The early optimism proved ill founded, the seeds for this week's events having been planted in those early days.

According to officials involved in the process, the Government was anxious at the time that the allegations that were emerging, involving more than 40 institutions and hundreds of religious, teachers and staff, should not precipitate a multitude of inquiries. In its attempt to create a catch-all commission that would be all things to all people the Government created a vehicle with the potential to become the longest-running and most expensive inquiry in the Republic's history.

The legislation for the inquiry was put in place in April 2000. When Justice Laffoy and her colleagues set about their work the first major challenge was there to meet them. Victims' groups wanted legal representation for complainants appearing before the commission, but their lawyers' attempts to agree fees with the Department of Education erupted into a full-blown row. Some officials feared the inquiry could turn into a taxpayer-funded gravy train for lawyers, an attitude that infuriated the legal representatives. The victims' groups threatened to stop co-operating if fees could not be agreed, arguing that religious orders would have their own teams at the inquiry.

The second major issue related to compensation. The Government originally planned to allow the issue to be dealt with in the courts, but victims' groups were threatening to withdraw from the inquiry unless some form of compensation tribunal could be agreed. This was necessary, they argued, to spare complainants the ordeal of effectively having to undergo two trials, at the inquiry and the High Court. Fearing the State rather than the religious orders would bear the brunt of the costs, Government officials were sceptical of the proposal.

As these issues ground on through the summer of 2000 and into the autumn, frustration began to build within the commission, whose ability to proceed with its inquiry was being hampered by the delays the rows were causing.

That autumn, during a public hearing, Justice Laffoy went so far as to publicly admonish the Government, expressing her commission's disappointment that it was not showing "a more obvious willingness" to "speedily address" the issues holding up her work.

In November of that year the Government announced a compensation tribunal, the Residential Institutions Redress Board, declaring that religious orders had agreed to make a "meaningful contribution" to its costs. Negotiations about that contribution and an indemnity for the orders involved dragged on for a further 18 months. The eventual €127 million deal became a controversy in itself, with two-thirds of the sum made up of land transfers that the State, concerned about their value and resale, has yet to accept. The redress board began its work in full only late last year.

Although not directly connected to the work of the Laffoy Commission, the protracted negotiations further hampered the inquiry's ability to get speedy and full co-operation from everybody involved, including the religious orders and the State. By this stage the commission had received more than 1,700 allegations, all of which would have to be investigated. Its remit had been further widened by the Government to include an inquiry into vaccine trials in children's homes in the 1960s.

Its investigations progressed so slowly that by the summer of 2002, after two years of full work, fewer than 15 allegations had gone to full hearing. Hearings that were meant to take hours lasted days as complainants were put through hard cross-examinations by lawyers for the religious orders and those accused of abuse.

Michael is one of the handful of people to have been before full hearings of the investigation committee. Although it was traumatic, he believes the experience was necessary and worthwhile. When Michael was called to the hearing he was told it would last four hours. Instead it lasted four days. "It was a devastating experience," he says. "I was there to tell the truth, so that people would know what happened."

At the head table sat Justice Laffoy, with two commission members, the child and adolescent psychiatrist Imelda Ryan and the clinical psychologist Fred Lowe. There were also 13 solicitors and barristers in the room. Michael read out his statement, naming the brother he accused of abusing him at an industrial school. He was then cross-examined by barristers for the State, the religious order and the man whom he had accused. The man he had accused gave evidence and "made a cod of the whole thing, denied he knew me".

On the way home Michael was distressed. "If my wife hadn't been in the car with me I'm afraid I would have killed myself." He is glad he went to the commission, however, as it was "the only way" to get to the truth.

Although everybody had said they were willing to co-operate with the inquiry, Justice Laffoy was forming the opinion that this was not the case.

Religious orders had mounted a number of procedural challenges against her decisions and rulings, which added significantly to delays. The main case - from the Christian Brothers and still before the High Court - challenges the right of the commission to name dead people it makes findings against.

In October the commission said the orders had adopted an "adversarial and legalistic" approach to the inquiry. "Insofar as they are co-operating with the investigation, in practice they are doing no more than complying with their statutory obligations and doing so reluctantly, in the case of some respondents, and under protest, in the case of others."

It was also having problems with the Department of Education, which had still to provide many documents. In March this year the judge said she was "worn out" by expressions of contrition from the Department, many of whose papers were still outstanding. "It beggars belief that we are where we are today. We are 18 months down the road, and the Department is still not dealing directly with requests from the commission."

The judge was well aware of the time and money involved if the proceedings continued in the same vein. She announced she was separating the inquiry into parallel divisions, so it could work more quickly, and asked the Department of Education for the funds to facilitate the reform.

But she was allocated the extra money only temporarily, as Noel Dempsey, the Minister for Education and Science, announced his own review, due to be completed in February. By July the minister had brought forward plans for a second review, as he did not believe the proposals for the first review would resolve the problems. His announcement on Monday of that further review meant a more delays for the commission's work, and Justice Laffoy handed in her resignation.

The future of the inquiry is uncertain, with the Government believing that to hear all 1,700 cases would be too costly and take too long. It has also been suggested by senior Government officials that the judge may have overstepped her terms of reference in her handling of the investigation into the vaccine trials. And a decision against her in the Christian Brothers' challenge about naming dead people could make the work of the inquiry impossible.

For Colm O'Gorman of the One in Four victim-support group, however, the Government has been losing its grip on the situation. "Everybody is trying to spin this. A review is a good idea; the judge suggested it herself. It's the way in which we intend to carry out this review. The issue is that the Taoiseach and the Government failed to give support to an inquiry it had set up."

How the Laffoy Commission Works
The Commission to Inquire into Child Abuse, or Laffoy Commission, is a legally empowered, six-member inquiry established to investigate child sexual and physical abuse in Irish institutions from 1940 to 1999. It is split into two sections, the confidential committee and the investigation committee.

Confidential Committee
Made up of three members, it hears evidence from people who want to tell their stories but do not want to undergo the rigours of a full investigation.

By March this year it had heard from 660 witnesses, with 452 waiting to give evidence. Of the 660, 558 have been heard in Dublin. To facilitate the elderly and the ill, 43 have been heard elsewhere in Ireland, 56 in the UK, two in the US and one in Paris.

Investigation Committee
At the centre of the controversy, this committee facilitates a more in-depth process, allowing people to make specific allegations for full investigation. The commission can make findings of fact and name those it makes findings against.

The investigation committee initially received just over 1,700 complaints. By its autumn 2002 deadline 1,200 of these people had submitted detailed statements for investigation.

More than 700 complaints to the commission, whose last interim report was in November 2001, concern industrial schools run by the Christian Brothers. Complaints from the elderly have priority. Since the investigation committee got under way, however, fewer than 40 people are thought to have had their claims brought to full hearings.