Ireland and New Zealand have many striking similarities. Both are common law countries with a population of around five million, and unfortunately both share a history of institutional state abuse. In recent months, Ireland and New Zealand have been put under the spotlight for human rights violations during the 20th century. Both the Irish and New Zealander governments are trying to come up with financial redress schemes to help past victims of institutional abuse. However, it is clear that these restorative justice schemes are not enough to rectify past failings by both states to intervene and protect children from abuse.

IRELAND

 Under article 2 of the European Convention on Human Rights (ECHR), a state has a positive obligation to intervene in cases where there is a threat to a child’s life. Moreover, the European Court of Human Rights (ECtHR) has held a number of times that a state that fails to protect a child from torture, inhuman, or degrading treatment or punishment will be held accountable for such failures under article 3 of the ECHR. This point was illustrated in the case Association Innocence en Danger et Association Enfance et Partage c. France [2020], which concerned a child who had been physically abused by her parents. French local authorities were notified of the abuse but failed to take action to prevent the child’s death. The ECtHR ruled that inadequate measures had been taken by social services to protect the child from harm.

 The Irish state has already been held accountable for failing to uphold its positive obligation to protect children from mistreatment and abuse. In the landmark case of O’Keeffe v Ireland [2014], the ECtHR ruled that the Irish state had violated article 3 of the ECHR in failing to protect the defendant from being subjected to sexual abuse over a period of several years within a state-run institution.

In 2009, the first report investigating child abuse perpetrated in state-run institutions was published. The Ryan Report investigated abuse that occurred within orphanages and schools across Ireland during the 20th century. The investigation received testimony from more than 500 witnesses. The transcripts detail abuse which ranged from physical beatings to sexual misconduct, which was endemic in boys’ institutions. Although run by the Catholic Church, they were overseen by the Irish state.

The recent Mother and Baby Homes Report published on 12 January 2021 further highlights the extent of the abuse Irish children suffered within state-run institutions between 1922-1998.The Mother and Baby Homes institutions were predominantly used to house single mothers and children born outside of marriage. These women were considered “sinful” in the eyes of society, the Church, and the Irish state. The Mother and Baby Homes were thus heavily relied upon by Ireland as a solution to the cultural “problem" of unwed mothers.

A commission of investigation into the Mother and Baby Homes was created following the Tuam scandal in 2015.The bodies of 796 children were discovered within a septic tank on the grounds of a former Mother and Baby Home institution in Tuam, County Galway. This discovery received international attention and placed considerable pressure on the Irish state to investigate all abuse allegations pertaining to the Mother and Baby Homes.

The final report recorded that around 57,000 women and children entered these Mother and Baby Homes in the 20th Century. The majority of children who grew up within these institutions were subjected to physical abuse, starvation, and neglect. In 1943 alone, 75 percent of the children born in the Bessborough Mother and Baby Home in Cork city died due to abuse and neglect. According to Professor Louise Kenny at Liverpool University, growing up as a child within one of these institutions would inevitably lead to mistreatment and abuse: “To be born in Bessborough in the early 1940s was almost certainly a death sentence.”

NEW ZEALAND

In December 2020, an inquiry into child abuse within the state’s care system concluded that almost 250,000 children suffered “some form of abuse” between 1959 and 1999. The investigation carried out by the Royal Commission focused on children and young adults who had been residing within state-run institutions. Similar to Ireland, these institutions were also affiliated with and presided over by the Catholic Church.

New Zealand Minister Chris Hipkins described the findings in the report as “difficult” to digest and also underlined that “all children in the care of the state should be safe from harm, but as the testimony sets out all too often, the opposite was true”. According to the report, 655,000 children passed through the doors of these institutions. The victims most frequently abused were from poor backgrounds in particular those from “Māori whanau [family], Pacific families, children from impoverished backgrounds, disabled people and women and girls”. Today, the overwhelming majority of children in state care in New Zealand are Māori despite the fact that the Māori make up only 16 percent of the population of New Zealand.

These findings parallel those in the Ryan Report and the Mother and Baby Homes Report in Ireland, which highlighted that orphans and those who were marginalised by society often received the worst abuse. The investigative reports carried out in both Ireland and New Zealand demonstrate that in most cases, the children who are the most vulnerable suffer the most.  

THE REDRESS SCHEMES

In response to the public outcry following the tragic findings in the Mother and Baby Homes Report, the Irish government has created a redress scheme, which will come into effect in April 2021. Minister for Children Roderic O’Gorman has suggested that the restorative justice scheme will include a financial payment to victims. In addition, survivors of institutional state abuse will be able to avail themselves of medical cards to access treatment. However, there are several issues with the proposal.

The Irish government devised a similar scheme in 2013 following a report on the forced labour of thousands of Irish women within Magdalene Laundries between 1922 – 1996.  Yet, in 2021 many of the survivors have still not received any form of financial reparation for the time they spent detained within these institutions. Therefore, in Ireland, there is a danger that the government may commit past errors in its treatment of victims and survivors of institutional abuse. On 13 January 2021, Professor Conor O’ Mahony, director of the Child Law Clinic at University College Cork, underlined the importance of ensuring that the government approaches this new scheme in a different manner: “It is imperative that the design of any redress scheme for survivors of the mother and baby homes avoids making the repeated errors that have dogged the design of past redress schemes, which have left a trail of anger and bitterness in their wake.”

Likewise in New Zealand, the reluctance of the government to adequately redress victims of abuse has proven to be problematic. According to the New Zealand Herald, the Ministry of Social Development has paid on average NZ$19,000 per claim, which is a meagre sum in  comparison to Australia where the National Redress Scheme grants approximately NZ$80,466 per claim. Human rights lawyer Sonja Cooper highlighted the “dismal failure” displayed by the government to provide financial payments to the victims. Sonja Cooper has also called for an “urgent review” of the current redress process in New Zealand for victims and survivors of institutional abuse.

FUTURE IMPLICATIONS OF INSTITUTIONAL STATE ABUSE ON CHILD DEVELOPMENT AND CRIMINALITY

It is widely recognised that delinquency may be a long-term behavioural side-effect of childhood abuse. Studies show a correlation between violence and the rates of future delinquency (Smith & Thornberry, 1995). In one particular study, participants who had been physically abused were 38 percent more likely to be arrested for a violent crime in comparison to a child who suffered physical abuse. Furthermore, Grotevant (2006) found that early maltreatment could predict aggressive antisocial behaviour at the age of 21. Therefore, child abuse not only has a detrimental impact on the victim and their well-being, but will increase the likelihood of engaging in delinquent and criminal behaviour to the detriment of society. In addition, a victim of child abuse is more likely to abuse others than an individual who was never been abused, thus the victim becomes the perpetrator and the vicious cycle continues. The institutional abuse scandals emerging from both New Zealand and Ireland have demonstrated the negative implications of child abuse on the victims, their families and society as a whole. Nonetheless, child abuse continues to be a prevalent and ongoing human rights issue that needs to be adequately addressed by state and world leaders.

Cliodhna is an Irish Law student having recently completed a BCL (Law and French) at University College Cork and an LLM (Law and Criminology) at Maastricht University.