The High Court is due to hear two test cases seeking judicial review of the final Mother and Baby Homes report of the Commission in late October or November.
The cases are being brought by Philomena Lee and Mary Harney, two survivors of the homes. As test cases, they will set a precedent for similar cases: eight women in total are currently challenging the mother and baby homes report. A third test case brought by Mari Steed may also be heard later.
Michael Lynn SC and Siobhan Phelan SC told Mr Justice Garrett Simons on Tuesday that the hearings for the test cases are expected to take two days. David Fennelly BL, representing the State, said that time would be needed to examine the affidavits submitted in these cases as well as to consider a motion for discovery of certain documents relating to the Steed case. This motion is due to be heard immediately following the hearings in the two lead cases.
Ms Lee and Ms Harney are claiming that they ought to have been given a right to reply before the publication of the Commission’s final mother and baby homes report in January. They say that the failure so to do breached section 34 of the Commissions of Investigation Act 2004, as well as their rights under the Constitution and the European Convention on Human Rights.
As the Commission no longer exists, the cases are being brought against the Minister for Children, the Government and the Attorney General. The State has asserted in response that the final report does not identify the women and that the Commission was independent of the Government.
Ms Lee was sent to the Sean Ross Abbey home in Co Tipperary when she was pregnant in 1952. Her son was adopted without her consent and later died before he and Ms Lee could reunite. Ms Lee claims that the Commission’s final mother and baby homes report contains findings at variance with her own testimony on affidavit and that if she had been given a draft copy of the report she could have made submissions to the Commission seeking for revisions to be made.
Ms Harney, who was born in the Bessborough home in Cork in 1949, is also claiming that her rights were breached by a failure to allow her to make submissions on a draft of the mother and baby homes report. Ms Steed, who was also born in Bessborough, is seeking the quashing of the Commission’s finding that there was no evidence that the vaccine trials conducted at the institutions harmed any child.