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State ‘prioritising liability over adoption rights’…

The State has been accused of being more concerned with managing the “potential scandal and legal liability” of illegal adoption, birth registration, and other coercive adoption practices than helping victims.

The claim has been made by James Gallen, the expert appointed by Children’s Minister Katherine Zappone to assist the Mother and Baby Homes Commission on mapping out a model of ‘transitional justice’ for survivors.

The academic from the School of Law and Government at DCU was reacting to broader issues raised in an Irish Examiner special investigation on Monday.

It highlighted the case of Jackie Power (not her real name), who was told to sign a bogus name on an adoption consent form in the Bessborough Mother and Baby Home in 1974.

As a result, all the documentation that followed including her son’s birth certificate and adoption order was falsified.

In February 2017, instructions were issued via email to a Tusla staff member dealing with Jackie’s her case to refer to it and others like only as “possible” illegal registrations.

A later email to the staff member indicates that the language choice was because of the concern that “stuff is FOI-able and it could be used against us if someone takes a case the AAI [Adoption Authority of Ireland] are only ones to determine if registration is illegal or not so we hold our powder, that’s the thinking anyway so”.

Mr Gallen said the case demonstrated that the State was more interested in managing a potential scandal than helping families.

“The documents obtained by Jackie under FoI requests demonstrate that State authorities remain uninterested in serving the needs of assisting families in receiving information about their members and instead privilege the management of potential scandal and legal liability in cases of potential illegal adoptions, false registrations or other coercive adoption practices,” he said.



2/2...“The failure of State authorities to act in a case as well documented and egregious as Jackie’s misses a critical opportunity to demonstrate that the State has changed, that it is willing and able to redress cases involving its potential prior wrongdoing,"he said.

Mr Gallen said “the State simply doesn’t get it” and pointed to the fact that the Department of Children and Youth Affairs has committed to a “transitional justice” approach to the Mother and Baby homes scandal.

“Talk of transitional justice is fundamentally undermined when the ongoing relationship between citizens and the State is one where the interests of an individual are countered by the desire to maintain the reputation of institutions,” said Mr Gallen.

The process of how citizens are treated matters as much as the outcome. This desire is especially evident in the current practices in disabling individuals from obtaining access to their adoption files and treated as a problem to be solved instead of a citizen to be served.

Dr Gallen said the lack of reporting about the modern day awareness of illegal adoptions revealed “an invidious discrimination in how victims-survivors of historical wrongs are treated”.

"It took Ireland over 10 years of investigating child abuse in the Ryan Commission to commit to a mandatory reporting of allegations of child abuse.

"Yet it has not led to a culture where allegations of wrongdoing elsewhere in the State apparatus leads to a mandatory disclosure to the individuals concerns and relevant authorities, but instead demonstrates attempts to minimise wrongdoing and make it as difficult as possible for individuals such as Jackie to have effective rights to truth, information and family life,” he said.

In a statement, the department said it “cannot comment on individual cases” and pointed out that a scoping exercise into illegal registrations is ongoing.

*This name has been changed to protect the identity of the woman involved



1/2...Failure to publish report on rape of three children in foster care condemned in Dáil…

Taoiseach said he would have to check with Minister for Children on the report.

A TD was so angry with the Taoiseach’s reply to her question in the Dáil about a child sexual abuse report that she told him “a dignified silence for your three minutes might have been a better response”.

Independent TD Catherine Connolly accused the Taoiseach of adopting a “Pontius Pilate” approach in relation to a case he was fully familiar with and of washing his hands of his duty to ensure the system for investigating child abuse is accountable.

She said there had been an “abject failure” to complete and publish a report on the systematic rape of three young children.

The document was to be completed and published by the national review panel, established to investigate cases where children were involved in serious incidents or died while in State care.

Ms Connolly said two-and-a-half years later the report had yet to be published into the cases of Rachel, Amy and Sarah, now adults who had been raped by Keith Burke while in foster care.

Burke (29) was sentenced in April to seven and a half years in prison, with a year suspended, after he was found guilty of raping the then three foster children between 2003 and 2007.

She said it was an RTÉ Investigates programme that highlighted the case where the children were forced to give evidence because the accused pleaded not guilty.



2/2...At the time the Taoiseach had commended their bravery but Ms Connolly accused the Taoiseach of “actively standing over a system that is failing the young women”.

There was still no report despite promises that it would be published in October and then last month.

Mr Varadkar told her he had not anticipated her question and did not have an up to date report but he would check with Minister for Children Katherine Zappone as to why the report could not be published.

The Taoiseach then listed a number of “good reasons” why reports might not be published and “not necessarily because someone does not want them to be published”.

He also referred to the 2017 annual Tusla report of the national review panel published last month but said it did not deal with the cases Ms Connolly was raising.
In an angry response Ms Connolly said a better response from the Taoiseach would have been a dignified silence.

“It is entirely unacceptable as Taoiseach of this country to stand up in the manner you have stood up and quote inane quotes from reports.

“As Taoiseach you have a duty to ensure that the system is accountable. You cannot do a Pontius Pilate and wash your hands of it,” she said

She reminded him that “it has been raised many times and you are fully familiar with the case and you are fully familiar with the independent review mechanism.”

Mr Varadkar replied that the appropriate action would be for him to ask Ms Zappone to update Ms Connolly.

He told the TD “I don’t want to insult you or anger you any further by giving a different response to that”



Possible to identify Tuam remains using DNA, Trinity Professor says…
Identifying the remains of babies buried at the site of a former mother-and-baby home in, Tuam, Co Galways is possible with DNA testing, according to a Trinity College geneticist.

Last year, an Expert Technical Group warned that it would be impossible to get DNA identification of infants and young juveniles without samples from living relatives.

The group also highlighted that DNA testing can itself destroy the samples recovered.

Professor Aoife McLysaght said the original report to Government "was incorrect regarding the DNA."

"It said it was not possible to take DNA from the remains and that was corrected in a public letter, including from some of my colleagues here in Trinity," she said.

"It is possible, we have the technology to take DNA from remains such as these...

When you have that DNA what you need then is family members too [to give a sample]. In that case it ought to be possible."

Prof McLysaght was speaking at an event in Trinity ahead of the awarding of an honorary degree to Galway historian, Catherine Corless.

Ms Corless played a pivotal role in uncovering details of a mass grave at the former home in Tuam.

She said that she has complete faith in the Commission of Investigation into Mother and Baby Homes to investigate the site.

She said the commission "seems to be going in the right direction."

"I think they are under tremendous pressure from the whole world," she added.
Ms Corless added that she has given all her research to the commission, including research into the mothers who did in the home



1/2...Court hears how boy sent to industrial school for two years in 1960s after stealing food and coin…

A man who was aged 12 when sent by a court to an industrial school for two years over stealing some food and a one crown coin from a neighbour's house has won an important Supreme Court appeal over a refusal to consider his redress application.

He sought redress over being allegedly severely physically and sexually abused by named Brothers at the school between late 1962 and April 1964.

He said this adversely impacted on him as an adult and he had periods of imprisonment and suffered from sexual dysfunction which lead to the breakdown of his first marriage.

He did not apply for redress within the three year period before September 2005 required under the Residential Institutions Redress Act 2002. When he applied in 2008, the Residential Institutions Redress Board refused that over delay.

He got new solicitors and applied again in late 2010, supported by reports from a consultant psychiatrist which explained he used repression so as to cope with his memories of his time in care.

The Board granted an oral hearing in November 2011 and the man, his wife and a psychiatrist gave evidence.

In January 2012, the Board refused the second redress application after finding there were no "exceptional" circumstances within the meaning of Section 8.2 of the 2002 Act that allowed it exercise its discretion under the Act to extend time.

He went to the High Court in 2016 which ruled he had not shown "good and sufficient reason", within the meaning of order 84 of the superior court rules, for his delay in seeking judicial review entitling him to an extension of time for such review.

He appealed and, by a three to two majority on Thursday, the Supreme Court ruled in his favour.

The appeal centred on the meaning of "good and sufficient reason" in order 84; interpretation of Section 8.2 and the nature of the test to be applied by the Board in deciding if exceptional circumstances exist to extend time.



2/2...Ms Justice Mary Finlay Geoghegan, with whom Mr Justice John MacMenamin and Ms Justice Iseult O'Malley agreed, found the man had established good and sufficient reason to extend time for judicial review and that his delay in seeking judicial review within the stipulated three month period was due to factors outside his control.

The Board had said, if the man won his appeal, it would reconsider his redress application without need for judicial review and the matter will now be reheard by it.

Mr Justice Donal O'Donnell and Ms Justice Mary Irvine disagreed the man was entitled to extension of time for judicial review.

In the majority decision, Ms Justice Finlay Geoghegan concluded the High Court was wrong in principle in deciding it could not, when considering whether to extend time for judicial review, take into account a 2016 judgment of the Court of Appeal, McE v the Redress Board.

The McE judgment reversed another refusal by the Board to extend time after disagreeing with the Board about what constitutes "exceptional" circumstances in Section 8.2.

The COA said that term should be construed as "widely and liberally as can fairly be done" because the Act is remedial.

Ms Justice Finlay Geoghegan held the McE decision applies, in principle, retrospectively to all persons who, before that judgment, suffered the same or similar wrong as McE.

On all the facts and circumstances, including the change in construction of Section 8.2 as a result of McE, the man has shown good and sufficient reasons for extending time to seek judicial review, she held.

Those reasons included being legally advised in 2012, based on then court decisions concerning redress, a judicial review would not succeed.

The man was of limited means and said the prospect of having costs awarded against him was "frightening".

It was also not disputed he was in the industrial school between 1962 and 1964, had identified those who allegedly abused him and the 2002 Act established a no fault redress scheme intended to compensate persons like him.



A Cork man who lifted a 10-year-old girl from her bed while she was sleeping has lost an appeal against sentence for sexual assault….

Seán Garvey, aged 52, of Hartland’s Avenue, The Lough, had pleaded not guilty to sexually assaulting the girl at a house in Cork on February 6, 2016.

He was found guilty by a jury and sentenced to seven years imprisonment with the final two years suspended by Judge Gerard O’Brien on June 1, 2017.

The victim was not related to Garvey. Her family wanted Garvey named in the media following his sentencing. However, it is not possible to publish any information in relation to the case that would identify the victim.

He lost an appeal against his sentence today with the Court of Appeal unable to identify any error in principle.

President of the Court of Appeal Mr Justice George Birmingham said the 10-year-old girl was awoken around 3am to Garvey lifting her out of bed.

She went to the toilet first, and Garvey attempted to follow her.

She was dragged downstairs by the wrist, according to prosecuting counsel Dermot Sheehan BL, where she was touched in the vagina and chest areas. Garvey also attempted to take down her clothes.

The assault came to an end when the girl managed to kick Garvey and wind him.

She ran and alerted an adult.

Mr Justice Birmingham said Garvey had a good work record, though his working career had come to an end for medical reasons.

A medical report from Garvey’s longtime GP referred to him experiencing stress and anxiety.

He had some previous convictions for road traffic and public order matters but none were relevant to this offence.

Mr Justice Birmingham said the offence was “clearly” a serious one. It had a very significant affect on the injured party as well as her family.

The fact the case was contested, on a guilty plea, meant the most powerful mitigation that would have been available was not available to Garvey.

Mr Justice Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, said the court could not identify any error in principle and the appeal was therefore dismissed



1/2...Man jailed for seven years for repeated sexual assaults of girl…

A 46-year-old Limerick man has been sentenced to seven years in prison for repeatedly sexually assaulting a young girl and showing her pornographic videos.

The man was convicted by a jury of six counts of sexual assault and two counts of child sexual exploitation between 2009 and 2012.

The girl was aged between six and nine years old at the time.

At the time of the offences, the girl's parents had split up and the mother had started a relationship with the convicted man.

Ms Justice Tara Burns said the girl's mother trusted the man and trusted him around her daughter.

The court heard he showed her how to use a computer and helped her with her homework.

But the judge said that when her mother was out of the house, the man perpetrated the most vile sexual assaults on her in the sanctity of her family home.

The girl gave video recorded evidence but had to be cross examined, the judge said.

She said this was done in a very professional manner, respecting the now 16-year-old girl's age, but intimate and difficult evidence still had to be given by her.

The court heard evidence of the sexual assaults and of the man making the girl watch a pornographic video on two occasions.

Ms Justice Burns said the sexual assaults were of a most serious nature, perpetrated on a very young girl in her family home where trust had been given to him by her and by her mother.

She was in a vulnerable position because of her parents' separation.

The court heard the man's relationship with the mother ended in 2012 but the girl did not tell her mother what had happened until June 2013, when she left a letter in her mother's bedroom outlining some of the assaults



2/2...The family made a decision not to report the assaults at the time. But two years later, the man contacted the girl via Instagram and the girl and her mother went to the gardaí.

The man maintained his innocence in garda interviews, but he was found guilty of eight counts by a jury last month.

The court heard he has no previous convictions.

Ms Justice Burns said the girl had dealt with the incidents very bravely and wanted to look forward rather than backwards. However, she said what had happened had a very significant effect on her.

She had difficulty trusting people and the man had taken her innocence away.

She had also had to travel a very difficult road, bringing the case, and waiting five-and-a-half years for the case to come forward.

But she said the girl was looking forward to a new beginning in 2019 and wanted the happiness that was there before the man came into their home to come back into their lives.

The judge said the assaults were extremely serious, there was a high level of a breach of trust, he victim was very young, and the number of assaults took place over three years.

She said she did not take into account submissions that had been made about the man helping the mother in the home and helping the girl with homework because this behaviour had led to trust being given to him.

The judge imposed sentences ranging from two years for the child sexual exploitation charges and seven years for the final sexual assault.

The sentences will run concurrently



1/2...Waterford man jailed for rape and sexual assaults…

A former council worker and musician has been sentenced to ten years for rape and sexual assaults against girls as young as nine years old.

Waterford man Bartholomew "Batty" Prendergast, 65, sexually abused and raped his sister-in-law when she was a young teenager.

He also abused her older sister and another woman.

The Criminal Courts of Justice in Dublin heard the abuse continued when he was "supposedly fixed" after a priest directed him to get counselling.

Prendergast received a total of ten years for all the charges combined, with the last 18 months suspended.

Stephanie Hickey, 46 from the Nire in west Waterford, along with her sister, Deirdre Fahy, 52, waived their right to anonymity so Prendergast could be named.

The former Waterford County Council worker pleaded guilty in July for the sexual abuse and rape of the sisters and a third woman over the course of 12 years.

Prendergast, who lived in Dungarvan, carried out much of the abuse in the village of Tallow.

He retired earlier this year from his council job.

He was a well-known musician in the locality who is separated from his wife, and has three adult children and no previous convictions.

Prendergast pleaded guilty to two counts of rape and 13 counts of indecent assault of his sister-in-law Ms Hickey at locations in Co Waterford and Co Tipperary on dates between 1983 and 1987.

The assaults on Ms Hickey happened when she was aged between 12 and 15.



2/2...Prendergast also pleaded guilty to one count of indecent assault against Ms Fahy on a date between 1979 and 1981, while she was aged between 13 and 14 years old.

He further pleaded guilty to two counts of indecent assault of a third woman on dates between 1988 and 1991, while she was aged between nine and 12 years old.

At a hearing in July, Ms Hickey read her victim impact statement, saying she had been led to believe by a family friend, a priest, that in the 1980s he had been fixed.

"If you were supposedly fixed why did you continue to abuse me for years after? For this I feel very hurt, and let down by whoever fixed you I need answers from whom you spoke to help you at this time and again why as child I wasn't protected this hurt goes on," Ms Hickey said.

"I lost my virginity because of you and I wasn't even old enough to understand what you were taking from me. For this I will never ever forgive you.

"When all these rape and sexual abuses took place, I would feel like I was going to die, I would feel as if I was choking and could not breathe the fear was and will forever be inside me.

This is all down to you again for this I can never forgive you in my lifetime."

Ms Fahy had told gardaí that when she was 13 or 14 years old, Prendergast sexually assaulted her after she accepted a lift from him to the local shop.

Ms Justice Eileen Creedon said Prendergast carried out the abuse when he was aged 26 to 38 and that the assaults had a very profound negative effect on his victims.

The headline sentence for the combined offences, she said, was 14 years, but taking into account mitigating factors, she was sentencing him to ten years in prison with the final 18 months suspended



Ex-West Midlands officer admits making indecent images…

A former West Midlands Police officer has pleaded guilty to making more than 140 indecent photographs of children.

Lee Bartram admitted three charges of making indecent images of children between 2011 and August 2018 at Wolverhampton Crown Court.

Bartram, 44, of Bustleholme Lane, West Bromwich, is yet to plead to a charge of misconduct in public office.

He had previously admitted five further counts of making indecent images and two counts of distributing images.

The criminal charges spanned a period between August 2013 and August this year and related to a further 328 images, including some found on an iPad and an iPhone.

Bartram, who had worked as an inspector based in Birmingham city centre, was granted bail until 14 February, where he will be sentenced for all the offences at the same court.

Judge James Burbidge QC said: "You have already seen a probation officer so the case could proceed to sentence on that day. You should be prepared for that.

"I don't hold out any particular sentence to you, it's a matter for the sentencing judge."

Bartram was sacked in September after being found to be guilty of gross misconduct by the force.

West Midlands Chief Constable Dave Thompson said Bartram's actions were met with "disapproval, horror and disgust" from fellow officers.

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