Commission to Inquire into Child Abuse Act, 2000
The non-statutory Commission, which comprised three of the members of this Commission, made recommendations to the Government in two reports dated the
of September 1999 and the of 1999 respectively, in which it recommended, among other things, that the Commission should be put on a statutory basis. The reports were published at the same time as the publication of the Commission to Inquire into Child Abuse Bill, 2000 on the February, 2000.
This Commission was established on the May, 2000 pursuant to the Act, which had become law on the of April 2000. The Act, which in broad terms gave effect to the recommendations in the two reports, governs the functions, powers and procedures of the Commission.
A. The membership of the Commission reflects a wide range of qualifications and professional experience in areas which will be under consideration by the Commission.
As a statutory body mandated to inquire into a matter of grave public concern, the
Commission is unique. While under the Act it has powers and privileges similar to
those conferred on Tribunals of Inquiry and Committees of the Houses of the
Oireachtas to enable it to fulfil its investigative remit, it is also intended that its
hearing process will be a source of healing for survivors of institutional childhood
abuse and to that end it has unique features which will be outlined later in this
The Commission and its members are independent in the performance of their functions.’
Under the Act the Commission has a range of options in relation to recruitment of staff. Details of the current administrative and other staff of the Commission are set out in Appendix B. The five members of the administrative staff who are on secondment from the Department of Education and Science provided administrative services for the non-statutory Commission. None of these seconded staff has been involved in the Department of Education and Science or elsewhere in the
consideration of or processing any complaint of or other matter relating to child
abuse. Moreover none has had any administrative or management responsibility in the Department of Education and Science or elsewhere for industrial schools or
The inquiry officers, who under the will carry out a preliminary inquiry for the
Investigation Committee in relation to each allegation of abuse coming before that
Committee, will not be recruited from any Department of State has or has had
responsibility for children in institutions. This example, the Department
of Education and Science, the Department of Health and Children or the Department
of Justice, Equality and Law Reform.
Section Section 9
There will be in force within the Commission a protocol, which will bind the members of the Commission, its staff and advisers, for identifying potential conflicts of and ensuring that a member of the Commission or of its staff or any adviser does not become involved in any matter which comes before the Commission or a Committee of the Commission where such involvement would give rise to a conflict of interest. The protocol will be strictly enforced by the chairpersons of the Commission and the Confidential Committee.
Under the the Committees of the Commission are permitted to act in divisions. This will enable the Committees to deal with any conflict situations which may arise.
It will also enable the Committees to complete their work more efficiently.
Under the the Commission has been given three principal tasks to perform.
continuing effects of abuse and to protect children in institutions from abuse now and in the future.
In performing these tasks, the Commission and its Committees must take into account the meanings given to certain words and expressions, for example “abuse”, “child” and “institution”, in the
In relation to the work of the Commission, “abuse” means physical abuse, sexual abuse, and other acts and omissions, for example, neglect and emotional abuse, which have serious consequences for a child.
In relation to the work of the Commission, “child” means a person who has not
attained the age of eighteen years, so that the Commission and its Committees are
concerned with the experiences of a person before his or her eighteenth birthday.
In relation to the work of the Commission, an “institution” means a school, an industrial school, a reformatory school, an orphanage, a hospital, a children’s home and any, other similar place and a foster home. However, the Commission and its Committees are not only concerned with within an institution, but they are also concerned with a situation in which abuse of a child, which took place outside an institution, was caused or contributed to by a person with responsibility for the child in the institution. For example, if a child from a residential institution was
abused while in outside employment arranged by the institution, that is a situation which the Act’ requires the Commission to look into.
The work of the Commission does not extend to abuse suffered by a child while in the care of his or her own family, whether the abuse was perpetrated by a member of the family or by a third party. For example, the work of the Commission does not extend to abuse of a child living and being cared for at home
|where the abuse was perpetrated by a neighbour;|
|(ii)||where a child in part-time or full-time employment was abused|
|by his or her employer;|
|(iii)||where abuse was perpetrated in a sports club by a coach or|
|another person in authority, or|
|where abuse was perpetrated by a group leader or other person|
|in authority in a group or club situation.|
Under the Act the Commission is to carry out its tasks of listening to survivors of abuse and conducting an inquiry into abuse in institutions since 1940 or earlier through its Committees. Two Committees have been established under the Acts , the Confidential Committee and the Investigation Committee. Details of the membership
of each Committee are set out in Appendix C. As required by the there is no
overlap between the membership of the two Committees.
While both Committees will contribute to fulfilling all of the of the Commission, its healing or therapeutic role, in the main, will be fulfilled through the work of the Confidential Committee, whereas its investigative role, in the main, will be through the work of the Investigation Committee.
Under the the Commission and the Committees of the Commission may require a witness to give his or her evidence on oath. All witnesses who give evidence to the Investigation Committee shall be required to give their evidence on
In making its findings of fact, the Investigation Committee will
To avoid adversely affecting the therapeutic effect of giving evidence to the
Confidential Committee, persons coming forward to that Committee will not be
required to give evidence on oath.
The Confidential Committee, in its report to the Commission, shall identify findings which are based on evidence which could not be tested or challenged and was not
corroborated, so as to enable the Commission to disclose these matters in it’s reports, as required by the Act”
The requires the Commission and its Committees to bear in mind the need of
persons who have suffered abuse in childhood to recount to others such abuse, their difficulties in doing so and the potential beneficial effect on them of so doing. It
enjoins the Commission and its Committees to conduct hearings at which evidence is given in such a manner as to afford persons who have suffered abuse to give their evidence in an atmosphere that is as sympathetic to, and as understanding of, them as is compatible with the rights of others and the requirements ofjustice and as informally as possible in the circumstances. The Commission, through its Committees, will hear all persons who come forward to tell of abuse they have suffered in institutions in childhood. No such person will be refused a hearing. The Commission expects, and it will take steps to ensure, that persons coming forward to testify as to abuse are treated in the healing manner envisaged by the Oireachtas. In the case of the Investigation Committee, in hearing the testimony of such persons, the rules of evidence may be relaxed where necessary to prevent the healing effect of testifying being jeopardised, but the Committee will hear submissions as to what evidence it may use in making its findings.
Under the Act the main task of the Confidential Committee is to listen to persons who have suffered abuse in childhood in institutions telling of this abuse and making submissions. The significant feature of the manner in which the Confidential Committee will conduct its business, and what distinguishes it from the Investigation
Committee, is that, subject to certain limited and specific exceptions provided for in the persons giving evidence to the Confidential Committee are guaranteed total
confidentiality in relation to their evidence and any documentation that they may
produce. To that end every hearing of the Confidential Committee is required to be
held in private”. The only persons present will be the members of the Confidential
Committee, the person giving evidence and, if that person so wishes, a companion
who will be required to agree to the confidential nature of the proceedings.
A person against whom, or an institution in respect of which, an allegation of abuse is made before the Confidential Committee will not be notified of the making of the allegation and will not have any opportunity to answer the allegation or to defend himself, herself or itself. However, the Confidential Committee may not name, or disclose information which would lead to the identification of, the witnesses before the Confidential Committee or the persons they allege committed abuse or any institution or any other
Moreover, while the Act requires the Confidential Committee to reach conclusions,
on the basis of the evidence it receives, in relation to the occurrence of abuse of
Section Section Section
children in institutions since 1940 or earlier, as the evidence will not have been tested and as persons and institutions against whom allegations have been made will not have had an opportunity to defend themselves, the Confidential Committee will only be able to reach conclusions, recorded in its reports, interim and final, as findings, of a general nature. No person or institution will be named or identified in any report of the Confidential Committee.
As the requires the Commission to make as complete a record as is practicable of the proceedings of the Commission and its Committees, it is intended that an audio recording will be made, as unobtrusively as possible, of each hearing of the Confidential Committee. No copy or transcript of the audio recording of a hearing shall be released by the Confidential Committee to any person unless it is so ordered by the High Court in the exceptional circumstances provided for under the Act and on the terms of such order However, if a witness objects to the making of an recording, a record of the hearing in the form of notes will be taken by the members of the Confidential Committee present. No copy of the notes shall be released unless it is so ordered by the High Court as aforesaid and on the terms of such order. A witness, who may be accompanied by the companion who attended the hearing before the Confidential Committee with him or her, will be afforded an opportunity, if he or she wishes, to listen to the audio recording of his or her meeting with the Confidential Committee in the office of the Commission as soon as reasonably practicable after a request such person is received. It will not be permissible to make any other record of the hearing.
Section Section Section (3)
Insofar as it is possible to do so against documents in the possession of public bodies in the State to which the Confidential Committee has access. the Confidential Committee will verify that a witness before the Confidential Committee was in the institution in which the abuse was alleged to have occurred at the relevant time and any other relevant facts capable of verification without breaching its duty of
The Act guarantees the confidentiality of information given to the Confidential Committee by making it an offence for any person, whether a member of the Confidential Committee, a member of staff assigned to the Confidential Committee or an adviser or expert retained by the Confidential Committee, to disclose any information provided to the Confidential Committee”. Moreover, the Act ensures that documents furnished to and generated by the Confidential Committee will never be made In relation to what will happen when the Commission has finished its work, in general under the Act the Commission has a discretion as to the custody and disposal of its records, subject to compliance with the National Archives Act, 1986 The records of the Confidential Committee will not be subject to the provisions of the Act of 1986 and, accordingly, the Commission will have an absolute discretion as to their custody and disposal. No final decision can be made at this juncture in relation to these matters Commission gives an assurance to persons concerned that the
guarantee of confidentiality in relation to information given to the Confidential Committee will be honoured. Persons who will give information in confidence and
persons, individuals and bodies, whom the information may suggest were implicated in wrongdoing or in conduct of which society disapproves who have not had an opportunity to refute the information, can be assured that steps will be taken to retain the records in a secure facility but only for such period as is reasonably necessary, Thereafter the records will be destroyed.
On a practical level, the Commission is putting procedures in place to ensure that the guarantee of confidentiality is honoured during the currency of the Commission, The Commission will have in place a protocol, which will bind every person who has access to information provided to the Confidential Committee, including staff members assigned to and to experts and advisers retained by the Confidential Committee. The protocol will be strictly enforced by the chairpersons of the Commission and the Confidential Committee. All documentary data furnished to or generated by the Confidential Committee will be stored in a secure place, to which only members of the Confidential Committee and staff members assigned to the Confidential Committee have access. Arrangements are being put in place to prevent any person other than members of the Confidential Committee and the staff members assigned to the Confidential Committee having access to the computer generated data of the Confidential Committee. Insofar as is reasonably practicable, the Commission will endeavour to assign staff to the Confidential Committee on an exclusive basis.
Apart from the importance of ensuring that the guarantee of confidentiality in relation to information to the Confidential Committee is honoured in the interests of the persons giving such information and of persons who might be adversely affected
if it was divulged, the Commission and its members are conscious of the necessity of ensuring, in the interest of fairness and justice, that the deliberations and findings of the Investigation Committee are not in any way informed by evidence given to the Committee.
The Commission will conduct or commission research in relation to matters which bear on its inquiry and the policy matters on which it may make recommendations, as it is empowered to do by the Act Persons coming to the Confidential Committee will be asked if wish to participate in this process. If they are willing to participate, any questionnaires will be administered by a member of the Confidential Committee or a staff member assigned or adviser to the Confidential Committee. Information gathered will be released by the Confidential Committee for analysis only in such form as the identity of the witness participating in the research is not revealed and the witness is assured of absolute anonymity. It is hoped that the witnesses coming to the Confidential Committee will participate in any research programmes which they are invited to participate in, because the Commission believes that all information channelled to the Commission through the Confidential Committee, whether the subject of general findings made by the Confidential Committee or the
results of other research, will help society to better understand the past circumstances of the survivors and their current circumstances.
abuse and making The essential difference between the two committees is that the Investigation Committee will hear the evidence in accordance with due process as part of the inquiry into the abuse of children in institutions since 1940 or earlier, which is one of the main tasks of the Commission. The results of the Investigation Committee’s inquiries will be reports, interim and final. It will be open to the Investigation Committee to reach conclusions, which will be recorded in its reports as tindings, where it is appropriate to do so on the evidence, that abuse occurred in a particular institution during a particular period and to name the institution and the person who committed the Because of this, the Investigation Committee must give every person who, and every institution or other body which, may be the subject of a conclusion which would adversely reflect on him, her or it the opportunity to defend himself, herself or itself.
The inquiry which the Investigation Committee must conduct is required to
|whether abuse occurred, and|
|(ii)||if it what were the causes, nature, circumstances and|
|extent of such abuse and what factors contributed to its|
and extent to which the various factors contributed, looking, in particular, at the institutions themselves and the systems of management in, and the regulation of, the institutions in operation at the time of the abuse, and how the
II complied with-“where it is satisfied that such abuse occurred”
persons and bodies responsible for the management and regulation of the institutions performed their duties.
Another difference between the Confidential Committee and the Investigation Committee is that, while Investigation Committee must hold hearings at which evidence relating to instances of alleged abuse of children is being given in private, it is given a discretion to hold other hearings in public and it is reminded in the Act by the Oireachtas of the desirability of holding hearings of the Investigation Committee in public”.
The Investigation Committee will conduct its inquiry in two phases. In the first phase, the Investigation Committee will investigate particular allegations of abuse. This phase will involve, in relation to each survivor’s allegation or allegations, a preliminary inquiry by an inquiry officer in accordance with the followed by a hearing which will be held in private. If it is established to the satisfaction of the Investigation Committee that abuse occurred, findings to that effect be made and recorded in an interim report from the Investigation Committee to the Commission. Such findings will be final and not open to challenge in the second phase. The Investigation Committee will then move on to the second phase. There will be two
components in this phase. One will involve investigating, in relation to each institution (or group of institutions under the same or connected ownership or management) the context in which the abuse occurred and why it occurred and the attribution of responsibility for it, whether institutional or regulatory. This
investigation will be conducted through public hearings, Each public hearing will involve discrete issues in relation to an institution (or group of institutions), In the other component, the Investigation Committee will look at the broader picture-the legislative framework and the historical and social context in which the abuse and will conduct such comparative analyses as it considers appropriate. It is envisaged that this component may be partly conducted through research projects.
The approach which the Investigation Committee proposes adopting is intended to put structure on the inquiry, which is wide ranging both as regards subject matter and in time. It is not intended that the various aspects of the work of the Investigation Committee will be rigidly compartmentalised. The report of the Investigation Committee will be based on the totality of the evidence available to it.
An outline of the procedures which the Investigation Committee proposes to adopt in relation to the first phase and the public hearing component of the second phase of the inquiry is contained in Appendix D. The Investigation Committee will adopt a flexible and fair approach in relation to all procedural matters and will endeavour to accommodate the interests of all persons affected insofar as is reasonably practicable. However, the has given the Commission two years in which to its remit”’ and the Investigation Committee will have to have regard to this time stricture in relation to imposing time limits and scheduling hearings.
It is not possible at this juncture to devise procedures for regulating the component of the second phase of the Investigation Committee’s inquiry. It is
envisaged that a further public statement will be made on this aspect of its work at the end of the phase. It is intended that issues of general application to all institutions or all institutions of a particular type will be dealt with in such a way as to avoid repetition, while giving every person or body affected by an issue the opportunity to be heard on it. It is also intended that matters of incontrovertible or uncontested fact should be identified so as to avoid the necessity for formal proof.
The Commission gives the same assurance as to confidentiality and absolute anonymity to persons coming to the Investigation Committee who are willing to participate in research programmes as it gives to persons coming to the Confidential
Committee. For the reason stated earlier in relation to Confidential Committee, it
is hoped that persons coming forward to Investigation Committee will participate
in such programmes.
The Commission anticipates that some persons against whom allegations of abuse are made before the Investigation Committee may be untraceable or deceased. The members of the Commission are conscious of their obligation to fulfil their statutory mandate in accordance with fair procedures. The manner in in a particular instance, an allegation in relation to a person who is untraceable or deceased till be dealt with by the Investigation Committee in its reports will only be decided on after the Investigation Committee has heard all the evidence and the submissions of all interested parties in relation to that instance.
the Investigation Committee has power to direct the attendance of witnesses and, if necessary, to seek the assistance of the High Court in ensuring compliance with such a Moreover, failure to comply with such a direction is an
The Act makes special provision for a witness testifying about abuse suffered by himself or herself. He or she is entitled to stop testifying or to decline to testify at any Accordingly, a witness as to abuse suffered by himself or herself is not compellable. If a person does stop testifying before the Committee of his choice, he or she may give evidence to the other Committee, but the first Committee must totally disregard all evidence and documentation furnished to it by that person.
In order to encourage witnesses to come forward and co-operate with the Commission, under the a person giving evidence to either Committee will have the same protection as he or she would ordinarily have if giving evidence in the High Court, for example, immunity from civil liability in respect of his her testimony. However, a witness, other than a person giving evidence as to alleged abuse suffered by himself or herself, will not be entitled to refuse to answer a question on the ground that the answer might incriminate him or As is usual in situations where a witness is deprived of privilege against self-incrimination, the Act provides that a
Section Section 19
statement or an admission made by a person to the Commission or its Committees which is against the interest of that person, whether made orally or in a document prepared for and sent to the Commission, cannot be later used in a court against that person or any person who may be vicariously liable for him or It is clear from newspaper reports that there is widespread misunderstanding of the effect of this latter provision. It does not mean that a person who tells the Commission or its Committees something against his or her interest, whether orally or in writing, cannot be prosecuted in a criminal court or be a defendant in a civil action for damages later. If such a person is prosecuted or is sued later, the case against him or her will have to be made otherwise than by reliance on the statement or admission made to the Commission or the Committee. The Commission wishes to emphasise two points. First, coming forward to give evidence to the Commission will not affect the right of a
survivor of abuse to give evidence of the abuse in criminal or civil proceedings in a court or before a tribunal later. Secondly, there is no question of any person who admits wrongdoing to the Commission getting an amnesty or any immunity from criminal or civil liability in respect of that wrongdoing.
Under the Act the chairperson of the Investigation Committee has power to direct a person to produce a document or make discovery on oath of documents in his possession or control relevant to the work of the Committee. These powers may only be exercised for the purposes of the functions of the Investigation Committee and any documents produced or discovered pursuant to those powers may only be used by the
Section 21 (1) Section 21 (2) Section 14 (1)
Investigation Committee for the purposes of its work and not for any other purpose. It is hoped that persons, including public bodies who have documents which are relevant to the work of the Investigation Committee will, where requested, produce those documents voluntarily. However, in the absence of voluntary production, the chairperson of the Investigation Committee will make directions under the Act.
Provision is made in the for payment in respect of the expense of making a discovery pursuant to a
The Investigation Committee will have a protocol in place for dealing with documentation submitted to it in the course of its work. A copy of the protocol, which will deal with such matters as security, confidentiality, use of sensitive material, return of documents not considered relevant and copying documents, will be available on request to a person from whom production is sought.
The Commission wishes to draw attention to the provision of the Act
which exempts the Commission and its Committees from non-party discovery in legal proceedings. In particular, it should be noted that there is an obligation on the Commission to make available to a person against whom a discovery order has been made in legal proceedings any document which is the subject of that order which is in the possession or control or the Commission. Apart from that obligation, the Commission will use its best endeavours, consistent with the fulfilment of its
functions, to facilitate all persons involved in civil litigation so that the prosecution of such litigation is not impeded.
The Commission, through its historical researcher, has access to all documentation in relation to industrial and reformatory schools held in the Special Education Branch of the Department of Education and Science in Athlone. The Commission understands that the documentation is in the course of being scanned and anticipates that by August, 2000 it will be available to the Commission in electronic form. The
Commission is considering how to make available to a person who is involved in a
hearing before the Investigation Committee such of the data as is relevant to the
hearing. This matter will be the subject of a further statement at a later public sitting.
However, the Commission reiterates that the power of directing production of
documents provided for in the Act may only be used for the purpose of the functions
of the Investigation Committee.
13. Disclosure As has been stated, subject to certain limited and specific exceptions provided for in the Act, persons giving evidence to the Confidential Committee are guaranteed confidentiality in relation to their evidence and any documentation which they may produce. There are two situations in which a duty of disclosure arises in relation to information provided to the Confidential In those situations there is also a duty of disclosure in relation to information provided to the Commission or the
Investigation which are otherwise exempt from any statute or any other rule of law requiring
The two situations which give rise to an obligation of disclosure are
The Commission is putting in place a protocol, which will bind the members of the
Commission, staff of the Commission and all other persons who obtain
information in the course of performance of functions under the Act, outlining the
procedures to be adopted in relation to the statutory duty of disclosure. Insofar as abuse of a child is concerned the protocol will incorporate the standard reporting procedures contained in “Children First: National Guidelines for the Protection and Welfare of
It is provided in the that the Commission may include in its report any recommendations it considers appropriate, including recommendations as to the
action it considers should be taken
Gathering information on which to base recommendations on such matters will be an integral part work of the Commission from the outset. While it would be premature at this juncture to decide on the the Commission will adopt with a view to informing itself in relation to those matters, it is envisaged that, apart from utilising such evidence relevant to those matters as comes to the Commission through the Confidential Committee and the Investigation Committee and the results of its research programmes, the Commission may take the following steps:
Published by the Department of Health and Children in September 1999.
|invite written submissions from the public and from persons|
|and bodies with expertise on a particular topic to furnish|
|written submissions to the Commission;|
|(ii)||consult with persons or representatives of bodies which have|
|furnished written submissions and others;|
|(iii)||produce a discussion document on some or all the relevant|
|hold a public forum on some or all of the relevant topics.|
The Commission would welcome written submissions from the public and interested bodies containing suggestions on topics which it should consider with a view to making recommendations in its report in due course and as to how public participation in the process of making policy recommendations might be achieved. The Commission is to persons and bodies who have written to this Commission and its predecessor on these matters and will have regard to their suggestions. The following list, which is not exhaustive, sets out topics which the Commission will be considering:
in relation to addressing the continuing effects of abuse suffered by survivors:
(iii) adequacy of counselling services for survivors,
(iv) tracing family, and other strategies for healing.
in relation to the protection of children in institutions now and in the future:
recruitment, training, support and supervision of personnel,
(ii) regulation and supervision of institutions,
(iii) complaints procedures,
mechanisms for ensuring the voice of the child is heard, and
rehabilitation of offenders against children.
The Commission does not intend to duplicate the work of any other public body isadvising on policy issues which are within the Commission’s remit. For instance, in considering the protection of children from abuse now and in the future, the Commission will use as its starting point the current “National Guidelines for the Protection and Welfare of Children”.
Any research which the Commission conducts itself or commissions will be carried out in accordance with best practice and in such a way as to ensure that the anonymity of persons participating in research is absolutely preserved.
When including the results of research in its reports, the Commission and its
Committees will clearly identify the material as being the result of research and not
16. The Commission is conscious that different considerations arise in relation to inquiring into and reporting on abuse of children in different types of institutions within the Commission’s remit. For instance, different considerations arise in relation
to abuse of children in residential institutions, such as orphanages, on the one hand,
and in non-residential institutions, such as primary schools, on the other hand. The
Commission intends to investigate and report on what has happened in the past in
relation to each distinct type of institution separately.
17. Expenses The Minister for Education and Science, pursuant to his under the has made a scheme for the payment of travel, accommodation and subsistence expenses for persons coming to the Commission or its Committees. The scheme is set out in Appendix E.
The Commission understands that a scheme for payment of legal expenses is under
consideration. Responsibility for making the scheme lies with the Minister for Education and Science under the but the Commission is entitled to be consulted.
The Commission has expressed the view to the Minister that, having regard to the procedures which the Investigation Committee proposes to adopt in relation to the conduct of its inquiry, the interest of all survivors of abuse might best be met by having a single team of barristers instructed by a co-ordinating solicitor. These (in the absence of agreement, which it may not be possible to achieve) would be chosen by
an independent person, such as the Chairman of the Bar Council or the President of the Law Society, to represent the survivors’ interest.
Given that every hearing of an individual allegation of abuse by the Investigation Committee must be heard in private, the advantages of an arrangement under which each individual making an allegation would be represented by a barrister from a legal team representing the interests of all survivors are obvious. Each individual would have the benefit of representation at the hearing of his own allegation by a member of a legal team which would be representing all survivors availing of legal representation at all private hearings of allegations in the phase of the inquiry. Accordingly, he or she would be represented by a lawyer with a broad knowledge of all of the facts and issues arising at the private hearings before the Investigation Committee.
Moreover, at the public hearing in the second phase his or her interest and that of all
other survivors would be represented by a legal team which would have represented
all survivors at the private hearings. With a single representation of the survivors’
interest the public hearings would inevitably be more effectively and expeditiously
conducted than if the survivors’ interest were represented by a multiplicity of legal
teams, none of whom would be aware of the full picture which had emerged at the
hearings of the allegations of abuse.
The Commission asks survivors to consider its suggestion in the spirit in which it is made: as being, in the Commission’s belief, the best choice for the survivors.
The text of the Commission’s letter dated the 14” of June, 2000 to the Department of Education and Science, which contains a fuller exposition of the Commission’s views on the representation of survivors, is set out in Appendix F.
18. Counselling The Commission is conscious of the traumatic effects which coming forward and giving evidence to the Commission may have on survivors of abuse and the necessity for access for survivors to counselling services when required. When announcing the establishment of the non-statutory Commission on 1 May, 1999, the Taoiseach also announced establishment of a dedicated professional counselling service in all regions of the State to help survivors to overcome the effects of abuse. The Commission is liaising with the project directors of this service. It is understood that the service will be operating by September, 2000. It is hoped it will be in a position to provide an emergency outreach service for those survivors, who require it, who come to the Commission.
Counselling will not be provided by the Commission, nor will the Commission act as
a referral agency to counselling services. However, it will make available to persons
coming forward to testify information on the counselling services available in their
19. Witness Support One, and if necessary more than one, member of the Commission’s staff will be assigned the role of providing support for persons coming forward to give evidence of abuse, This role will involve assisting persons, who come to the Commission to tell of their experiences, in a sympathetic and an understanding way. Help will be given, if sought, in relation to all aspects of their contact with the Commission-provision of information, completion of forms, dealing with special needs, providing support before and after a hearing and such like. The role will also include liaison with counselling services and, naturally, with survivors’ support groups.
The Commission is also conscious that the need may arise to provide support for persons required to attend before the Investigation Committee to answer allegations of abuse. If the need for such support becomes manifest, the Commission will make arrangements to have it provided.
The Commission will ensure that the implementation of the witness support functions
does not adversely impact on the evidence gathering processes of its Committees.
20. Second Public Sitting The matters dealt with in this statement and the appendices may give rise to issues in respect of which survivors of child abuse and other persons affected by the work of the Commission may’wish to make &presentations. The Commission proposes to sit in public again on Thursday 20” of July, 2000 at to deal with any submissions of which notice in writing has been given to the Commission by close of business on Thursday 14” July, 2000. The notice should summarise the matter on which the person making the submission requires clarity or a determination.
The Honourable Ms Justice Mary Laffoy, Judge of the High Court.
Dr. Patrick Deasy, Consultant Paediatrician.
Ms Gibbons, Childcare Director.
Mr Bob Lewis, CBE, retired Director of Social Services (Stockport, United Kingdom).
Mr Fred Lowe, Principal Clinical Psychologist.
Dr. Imelda Ryan, Consultant Child and Adolescent Psychiatrist.
Staff on secondment from Department of Education Science
Paul Doyle, Principal Officer.
Michael D. Ryan, Assistant Principal Officer.
Mary Durack, Higher Executive Officer.
John Higher Executive Officer.
Helen Lynch, Clerical Officer.
Gerry Cronin, BA, PhD, of Dublin), Historical Researcher,
Carthage Minnock, Court Usher.
Mr Bob Lewis, CBE (Chairperson).
Dr. Paddy Deasy.
The Honourable Ms Justice Laffoy (Chairperson).
Mr Fred Lowe.
Dr Imelda Ryan.
Words and expressions used have the meanings ascribed to them in the Act.
2. A request or direction given by the Investigation Committee (through an inquiry officer or otherwise) or by the Chairperson of the Investigation Committee shall stipulate a reasonable time for compliance with the request or direction, having regard to the nature of the request or direction, For instance, a request by an inquiry officer under paragraph (a) or paragraph (b) of section of the Act shall stipulate a period of four weeks for compliance with the request. Time for compliance with a request or direction may be extended at the discretion of the Investigation Committee.
Every person or body concerned will be given at least two weeks’ notice of the date of a hearing.
(c) or paragraph (d) of section of the Act shall be given to any person affected by the direction other than the person to whom it is directed.
7. Notwithstanding anything contained in this Appendix, the Investigation Committee shall be at liberty to adopt such procedures as it considers appropriate in relation to the conduct of its inquiry or any part of it and, subject to giving reasonable notice to
any person or body thereby affected, may depart from the procedure outlined in this appendix.
inquiry officer shall also request from the staff member assigned to the Confidential Committee verification that the Complainant has not applied to give evidence to the Confidential Committee.
(iii) the relevant documents submitted by the Complainant and each Respondent,
(iv) the verification data referred to in (b) above, and, any other relevant documentation in his
possession, shall be furnished by the inquiry officer to the Investigation Committee, together with a request for such direction or directions under section 14 of the Act as shall be advised by counsel for the Investigation Committee.
In the event of default by a Respondent in complying with a request pursuant to paragraph (b) of section of the Act within the time allowed, the inquiry officer shall outline in the report that circumstance and the Report shall be accompanied by such of the documents referred to at (e) as are available.
The book of documents may contain information of which the Complainant is unaware and which may cause distress to him or her. If the Complainant does not have a legal representative, the Commission’s witness support officer will contact the Complainant before the book is to apprise him or her in a general way of its contents and to suggest measures with a view to alleviating
3. In accordance with section of Act, the Investigation Committee shall endeavour to ensure that the hearing of the allegation is conducted in an atmosphere that is as sympathetic to, and as understanding of, the Complainant as is compatible with the rights of the other parties to the hearing and requirements of justice. The procedure to be adopted at the hearing shall be at the absolute discretion of the Investigation Committee. However, the Investigation Committee, as a general will adhere to the following order in calling evidence:
The statement, if any, of the respondent will be deemed to be read into the record and the Respondent may elaborate on his or her statement, if he or she so wishes;
(ii) The members of the Investigation Committee may address questions to the Respondent;
(iii) The Complainant or his legal representatives may address questions to the Respondent, and
The Respondent’s legal representative may address
questions to him or her. In case a Respondent has not complied with the request of an inquiry officer to furnish a statement he may nonetheless be allowed to give evidence but on such terms, whether as to adjournment or otherwise, as the Investigation Committee considers necessary to enable any person affected by the evidence to adequately address it.
A witness may be allowed to give evidence on matters not outlined in a statement or supplemental statement on such terms, as to adjournment or otherwise, as the Investigation Committee considers necessary to enable any person affected by such evidence to adequately address it.
her or its legal representative and by each Respondent or his or her legal representative within fourteen days of completion of the hearing. A request for inspection facilities should be made in writing to the Investigation Committee and it will be acceded to as soon as reasonably practicable.
Chairperson of the Investigation Committee to make.
6. If a person has requested that a direction under section 14 of the Act be given, the Chairperson of the Investigation Committee shall consider that request and make such directions as she considers appropriate.
Any additional relevant document not already furnished, whether arising from compliance with a direction or otherwise, shall be furnished to each Manager and each Regulator and the legal representative for the Survivors’ interest.
3. Travel Expenses
3.1 This part of the Scheme is designed to meet the travel expenses of witnesses who are giving evidence to the Commission. It provides for witnesses travelling either by public transport or by private car and for witnesses who travel from abroad.
Witnesses travelling to the Commission by public transport should retain
receipts for the expenditure incurred in so doing. The Commission will, on
presentation of these receipts, provide for an immediate refund of the expenses, or where circumstances do not permit an immediate refund, the Commission will make such refund as speedily as possible.
The Commission will reimburse a witness for the expenses of the use of private cars in the following circumstances
Where a private car is used to attend the Commission, the State will not accept liability for any loss or damage resulting its use.
Witnesses attending the Commission should furnish the Commission with a
statement of the miles travelled from their homes to attend the Commission,
together with their home address. Payment in respect of this travel will be
made at a rate of 50 pence per mile, and the Commission will make such
payment as speedily as possible.
3.4Witnesses travelling from abroad Where witnesses who wish to give evidence before the Commission are currently living abroad the Commission will refund the reasonable travel costs incurred, calculated by reference to the cost of an economy/budget airline ticket fare, or a contribution of equal amount to a higher fare ticket.
As in the case with public transport, witnesses should provide receipts of expenditure incurred in travelling to the Commission, and the Commission will make such payment as speedily as possible.
The Commission may ‘arrange for the provision of accommodation for witnesses attending the Commission where they are satisfied that the person concerned is obliged to make an overnight stay for the purpose of giving evidence to the Commission.
In the event that the Commission does not provide such accommodation, the Commission will refund vouched expenses incurred by the witnesses.
The Commission will also refund the reasonable vouched cost of subsistence
incurred by a witness attending the Commission for the purpose of giving
evidence to the Commission.
The refunds by the Commission to witnesses in respect of aggregate vouched accommodation and subsistence expenses shall not exceed E75.00 for any twenty-hour period.
5.Provision for Travelling Companion If the Commission is satisfied that the particular circumstances surrounding the attendance of a witness warrant him or her to be accompanied by a companion (such witness not being accompanied by a counsellor), the Commission may refund at its discretion the vouched expenses of the companion at the same rates as apply to the witness.
This provision will include such travel, accommodation, and subsistence expenses incurred by such companion and will be paid at the same rate as that for witnesses.
In some instances, a witness of limited means who wishes to attend the Commission, may not be able to attend due to the costs which he/she would have to incur. In such circumstances, the Commission may, where it is
satisfied that it is necessary, make appropriate arrangements in regard to travel
and subsistence for witnesses. These arrangements may include, in certain
circumstances, advance payment in respect of such expenses as are necessary
so as to allow the witness to attend. The total cost of the travel and subsistence
arrangements under this provision shall not exceed the amounts indicated in
paragraphs 3 and 4 above.
Counsellors A witness may be accompanied by a professional Counsellor when giving evidence to the Commission. Where such Counsellor is not being paid from public funds (e.g. the relevant Health Board), the Commission will pay an amount not exceeding in respect of the Counsellor’s attendance. Travel and subsistence will also be payable to Counsellors attending at the rates stated above. Tax clearance arrangements in respect of payments to professionals will apply.
|Expenses||Witnesses||Travelling (where appropriate)|
|Public Transport||Receipts of Expenditure||Receipts of Expenditure|
|Air/Sea Travel||Receipts of Expenditure||Receipts of Expenditure|
|Private Car||50 pence per mile|
|Subsistence and Accommodation Counsellor||Receipts of Expenditure up to per day||Receipts of Expenditure up to E75.00 per day up to|
Mr. Tom Boland,
Department of Education and Science,
14th June, 2000.
Dear Mr. Boland,
As I think you are aware, the Commission proposes holding a public sitting on Thursday June 2000, at which it will outline to the public its understanding of its functions and the procedures it proposes to adopt. The Commission is anxious that the Expenses Scheme provided for in section 20 of the Act should be in place by that date, if at all possible.
The purpose of this letter is to elaborate on a suggestion I made some time ago as to how legal representation of the interest of survivors might best be addressed in such a scheme, both from the perspective of survivors and the perspective of the Commission. The suggestion is informed by the unique nature of the Commission as a statutory inquisitorial body.
The question of legal representation arises only in connection with hearings before the Investigation Committee, not hearings before the Confidential Committee. Broadly speaking, it is envisaged that the hearings before and the work of the Investigation Committee will involve two phases. First, through the preliminary inquiry carried out by the Inquiry Officers provided for in section 24 and hearings before the Investigation Committee, the Investigation Committee will investigate particular instances of alleged abuse and, on the basis of the evidence, make findings which it is permitted to make, for instance, whether the alleged abuse occurred in a particular institution and its nature. Secondly, the Investigation Committee will be concerned to attribute responsibility to, and, where appropriate, apportion responsibility between, the systems in operation and the persons and bodies, private and public, who were involved in the management and regulation of the institutions in which the abuse, which the Investigation Committee has found existed, occurred and with the broader
issues within its remit, such as the causes of abuse.
Section 11(3) of the Act requires that the first phase of the work of the Investigation Committee be carried out through hearings held otherwise than in public. However, given that in section 1 l(3) the Investigation Committee is enjoined by the Oireachtas to have regard to the desirability of holding its sittings in public, it is the Commission’s view that the second phase of the work of the Investigation Committee should be carried out in public to the extent that that is possible in accordance with the provisions of the Act.
I will illustrate the manner in which it is envisaged the Investigation Committee will operate by reference to survivors A, B and C who allege that they were abused in institution X between 1970 and 1975. The individual allegations will be heard by the Investigation Committee at three private sittings at which the individual survivor will be in attendance and legally represented, if he wishes, and the person or persons who are alleged to have perpetrated the abuse and the management of institution X and, if there is a specific allegation against a regulatory body, that body is in attendance and legally represented if he or it wishes. In passing, I should say that I think it is unlikely that a regulatory body will be a party before the Investigation Committee at the first stage, unless, for instance, there is a specific allegation that a complaint was made to the regulatory body and it was not investigated or properly dealt with. Following the hearing of the allegations of A, B and C, the Investigation Committee will reach conclusions as to whether the abuse alleged occurred in institution X. If it concludes that it did occur, the Investigation Committee will then have to decide what factors
and circumstances contributed to the occurrence of the abuse and, in essence, this involves an issue between the persons involved in the and management of institution X, on the one hand, and the regulatory body, whether a Government Department, a Health Board or some other public body, responsible for regulating institutions such as institution X, on the other hand. It is the Commission’s view that the evidence and submissions on this issue should be held in public, although steps would have to be taken to preserve the anonymity and confidentiality of children who were in institution X at the relevant time. It would, of course, be important that the interests of survivors of abuse would be represented at the public hearings, which will also address the broader issues within the Investigation Committee’s remit.
It is felt that the requirements of would be best met if all survivors were represented before the Commission by one legal team. Let us say, again for the purposes of illustration, that the legal team would comprise two senior counsel and three junior counsel and a solicitor, whether from the public sector or from the private
sector. At the respective hearings of their allegations, A, B and C would be
represented by one of the barristers on the team. In the second phase, A, B and C and
all other survivors would be represented by the team.
The advantages of this approach the survivors’ perspective are manifold. It is to be expected that a team which habitually represents survivors before the Investigation Committee will build up more expertise in relation to the issues which concern survivors than a legal representative who appears before the Investigation Committee only once or only occasionally. Each individual survivor who is represented by a member of the team at the first phase will have the knowledge and the expertise of the entire team working for him. More importantly, the team which represents the survivors’ interests at the second phase will, through its individual members, have been involved in every hearing at the first phase. I believe that the co-ordinated and coherent approach which the team, with its background knowledge of facts and the issues, could bring to the second phase would be of more benefit to the survivors
and, indeed, to the Investigation Committee than three separate legal representations,
none of which, because the first phase hearings were held in private, would know the whole picture. Indeed given the requirements of section 11(3)(a) and 13(2)(c) of the Act, it could be argued that it would go against the scheme of the Act to hold the second phase in public if every survivor coming before the Investigation Committee was allowed separate legal representation at the second phase.
From the perspective of the Investigation Committee, allowing fragmented representation of persons who were in institution X at the relevant time (who in the example I have given to illustrate the points made in this letter number three, but, in reality, could number thirty) would be wholly unwieldy and inefficient and, in my view, would not promote the interests of the survivors. The interests of both the Investigation Committee and the survivors would be best served by a legal team which has a comprehensive and thorough knowledge of and insight into the overall work of the Investigation Committee. Moreover, it is in the interest of all of the survivors that the work of the Commission and its Committees be carried out in an manner and in as short a time span as is consistent with the fulfilling the Commission’s functions properly and fairly, so as to bring closure to one aspect of the historical legacy of abuse.
Thus far I have concentrated on the work of the Investigation Committee. The remit of the Commission extends to making recommendations it considers appropriate, including recommendations in relation to action which should be taken to alleviate or otherwise address the continuing effects of abuse on survivors and to prevent the recurrence of, and to protect children from, abuse in institutions in the future. It is considered that a legal team the members of which had represented every survivor who testified before the Investigation Committee could make a very valuable contribution in making submissions to the Commission, particularly on the issue of dealing with the continuing effects of abuse.
Finally, it seems to me that a legal team, which would represent such an important interest before the Commission, should be chosen by an independent person, such as the Chairman of the Bar Council or the President of the Law Society. Moreover, if an individual survivor has already retained a solicitor, there should be a role for such
solicitor in instructing the barrister member of the legal team, who will represent the
individual on the day.
I hope the foregoing is of some assistance in the formulation of the elements of the
Expenses Scheme dealing with legal representation of survivors. I believe that what
is proposed would work well for survivors.
Justice Mary Laffoy, Commission Chairperson.