- Access to Justice for Victims of Historic Institutional Abuse
This article focuses on the procedural obstacles to gaining redress for physical and sexual abuse, neglect, and other serious humanrights violations perpetrated against children and adults in Irish institutions throughout much of the twentieth century. These institutions were owned and operated by various religious organizations, most of them affiliated with the Catholic church.1 Although they were integrated into the state's system of criminal justice, social welfare, and child protection (such as it was), the state failed to exercise meaningful supervision or control of conditions over them.2 Residents therefore had no effective state protection against mistreatment or neglect. Children could be subjected to sexual and physical abuse in industrial schools, women to detention and forced labor in Magdalen laundries, and mothers and their babies could be forcibly and permanently separated in mother-and-baby homes.
In addition to being subject to criminal prohibition and sanction when they occurred, these human-rights violations gave rise to civil liability as violations of the personal rights protected by Article 40.3 of the Constitution. By the 1960s and 1970s such basic guarantees included the right to bodily integrity; to be reared with due regard to one's religious, moral, intellectual, physical, and social welfare; and to be safeguarded from inhuman or degrading treatment.3 These rights [End Page 100] were protected by the law of tort through causes of action for trespass to the person such as assault, battery, false imprisonment, and infliction of emotional suffering.4 Where no adequate remedy was available in tort law, these rights were protected by the ability to bring a claim for breach of constitutional rights.5
The first such civil actions for damages appear to have been related to sexual abuse in Madonna House, a state-licensed residential home for children run by the Sisters of Charity in Stillorgan.6 The official report on Madonna House in 1996 was never published in full,7 but revelations about horrific abuse of children by staff were incorporated into Mary Raftery's States of Fear documentary series for RTÉ in 1999. A number of civil actions were issued against the sisters and the Eastern Health Board in the early 1990s, yet although in 1999 one High Court case ran for twenty-two days, these cases appear to have been settled; therefore no guiding precedent has been established.8
For the state and the religious orders involved in administrating such institutions, the cost of resisting or settling such proceedings motivated the establishment of nonjudicial victim-redress schemes, the first created by the Residential Institutions Redress Act (2002). Such awards by the Residential Institutions Redress Board (RIRB) were conditional on the victim signing the following waiver:
I, [name], hereby accept the award of the Board in the sum of [amount of award] communicated to me by notice dated [date] and in accordance with section 13(6) of the Residential Institutions Redress Act 2002, I hereby waive any right of action which I might otherwise have had against any public body within the meaning of section 1(1) of the Act or against any person who has made a contribution under section 23(5) of the Act, and I further agree to discontinue any other [End Page 101] proceedings instituted by me against any such public body or person arising out of the circumstances of my application to the Board.9
Subsequently, an administrative scheme based on the RIRB model was established to address further potential liability in regard to claims by women and girls detained and compelled to perform forced labor in the Magdalen laundries. In the wake of the McAleese report, awards of redress offered under the so-called Restorative Justice Scheme were conditional on the signing of a waiver.10 Although the waivers obtained from victims under these schemes protected the state and the religious congregations against many civil actions, these institutions could still be exposed by victims who were unwilling to waive their rights—or by those ineligible for redress. But many other barriers stand in the way of victims of institutional abuse who wish to obtain justice in...