(Division: Chairperson & Mr. Lowe)
IC Reference: IC/1171
Issue raised at Procedural Hearing on 16th September 2002 (held in camera).
Ruling dated 27th November 2002
1. Statutory Framework
1.1. The Commission to Inquire into Child Abuse (the Commission) was established on 23rd
May 2000 pursuant to the provisions of the Commission to Inquire into
Child Abuse Act, 2000 (the Act). The principal functions of the
Commission as set out in section 4(1) of the Act are –
provide, for persons who have suffered abuse in childhood in
institutions during the relevant period, an opportunity to recount the
abuse, and make submissions, to a Committee,
a Committee to inquire into the abuse of children in institutions
during the relevant period and, where satisfied that such abuse has
occurred, to determine the causes, nature, circumstances and extent of
such abuse, and
- to prepare and publish a report in writing in relation to the inquiry and the determinations made in the course of the inquiry.
The expression “relevant period” is defined in section 1 of the Act as meaning –
period from and including the year 1940 or such earlier period as the
Commission may determine to and including the year 1999 and such later
period (if any) as the Commission may determine…”
The Investigation Committee is one of the two Committees established
under the Act, which is currently conducting an inquiry into abuse of
children in institutions during the relevant period in accordance with
the functions and powers conferred on it by the Act. Prior to this
Ruling, in accordance with section 23 of the Act, inquiry officers were
carrying out preliminary inquiries into all allegations of ill-
treatment of children which prima facie come within the
definition of “abuse” contained in section 1 of the Act, in
institutions, as defined in section 1 of the Act, whether the
allegations related to a period before 1st January 1940 or not.
2. The Factual Background
advertisements published in the print and broadcast media from the end
of June 2000 to mid July 2001, the Commission invited any person who
had experienced abuse in childhood in an institution to come forward to
give evidence. The Commission imposed a deadline of 31st July 2001 for responses to such invitation and the Commission is adhering to that deadline.
- On July 18th
2001 the Complainant submitted a request to give evidence to the
Investigation Committee. In accordance with section 23 (2)(a) of the
Act, the Complainant was asked to submit a statement of the evidence
which he proposed to give the Investigation Committee. On 15th March 2002 the Complainant submitted a comprehensive and detailed statement to the Investigation Committee.
accordance with section 23 (2)(b) of the Act, copies of the statement
were made available to the solicitors on record for the two
institutions in which the Complainant alleges he was subjected to
ill-treatment which constitutes abuse within the meaning of the Act and
to the statutory regulator of the two institutions.
so far as it is necessary to record them, the relevant facts disclosed
in the proceedings before the Investigation Committee in relation to
the allegations of the Complainant are as follows:
- The Complainant was born on 10th June 1916, and he is now over 86 years of age.
Complainant alleges that he was committed to the first institution
about which he complains, an industrial school, which will be referred
to as Institution A, in 1918 and remained there until 1925. He alleges
that while in Institution A he was subjected to ill-treatment which
amounted to abuse. The records maintained by the religious congregation
which formerly managed Institution A, which will be referred to as
Management Respondent A, indicate that the Complainant was committed to
Institution A on 3rd January 1920 when he was 3 years and 234 days old and that he remained there until 4th September 1925.
Complainant alleges that when he was approximately 10 years old he was
transferred to the second institution about which he complains, another
industrial school, which will be referred to as Institution B and that
he was subjected to ill-treatment which amounted to abuse in
Institution B while he was there between 1925 and 1932. In fact, the
records of Management Respondent A would suggest that the Complainant
was 9 ¼ years of age when he transferred to Institution
The records maintained by the religious congregation which formerly
managed Institution B, which will be referred to as Management
Respondent B, indicate that the Complainant was discharged from
Institution B on 8th June 1932, when he was just approaching his sixteenth birthday.
statutory regulator of Institution A and Institution B during the
period of the Complainant’s residence in the institutions is now
represented by the Minister for Education and Science. The database
maintained by the Department of Education and Science in relation to
persons formerly resident in industrial schools does not contain any
record of the Complainant.
issue raised on behalf of Management Respondent A and Management
Respondent B is whether the Investigation Committee has jurisdiction to
hear the Complainant’s allegations and, as part of its inquiry, to make
findings or determinations on foot of such allegations, given that the
allegations relate to what happened in Institution A and Institution B
prior to 1940. The Investigation Committee invited written submissions
from the Complainant, Management Respondent A, Management Respondent B
and the Minister for Education and Science on the issue. Written
submissions were received from the legal representatives of each of the
parties. A procedural hearing was held on 16th September
2002 at which this division of the Investigation Committee heard
submissions from each of the parties and also from the Investigation
Committee’s legal team.
- General Conclusions as to Proper Interpretation of the term “Relevant Period”
- On the basis of the submissions made to it, this division has reached the conclusions set out in the following paragraphs.
Commission’s remit is limited in time. The Commission’s function is to
hear persons who allege they suffered abuse in institutions during the
relevant period. The inquiry which the Commission is mandated to carry
out relates to what occurred in institutions during the relevant period
and the determinations and findings which the Commission is empowered
to make are similarly limited in time.
definition of “relevant period” in the Act comprehends the extension of
the duration of the functions conferred by the Act beyond the period
stipulated, i.e. the period from 1st January 1940 to 31st
December 1999, although, in determining whether it would be appropriate
to extend the duration and to what extent, significant weight must be
attached to the fact that the Oireachtas stipulated that
There is a presumption of constitutionality operating in favour of the
provisions of the Act which mandate an inquiry during the stipulated
definition does not admit of an extension of the duration of the
functions piecemeal, for example, on a “case by case” basis or on an
“institution by institution” basis.
regards the commencement of the duration of the functions, what is
envisaged in the definition is the substitution for the year 1940 of an
to substitute an earlier year for the year 1940, and if so, what year,
is a matter for determination by the Commission. Such determination
must be made in accordance with constitutional principles.
the Oireachtas has given very little explicit guidance to the
Commission as to the basis on which it should make a determination
substituting an earlier year for the year 1940, it is reasonable to
infer that the Oireachtas recognised that persons who might wish to
recount to a Committee of the Commission their experiences in
institutions from 1940 onwards may have been in institutions prior to
1940. Common sense and logic suggests that the totality of the
experiences of such persons in institutions should be investigated.
Therefore, it is considered that the Oireachtas must have had in
contemplation the extension of the duration of the functions of the
Commission beyond 1940 for a sufficient period to enable
Commission to investigate the totality of the childhood experiences in
institutions of persons who wish to testify and whose period in
institutions straddles 1st January 1940 in so far as it is possible to do so in accordance with constitutional principles.
In exercising its discretion to substitute an earlier year for the year
1940, the Commission must act in a rational and proportionate manner.
In particular, the Commission must have regard to the following factors
which impact on the implementation of the statutory mandate of the
the further back in time the incident or state of affairs alleged to
constitute abuse occurred or existed, the greater the difficulty which
is likely to be encountered in reaching a conclusion that an allegation
that abuse occurred in an institution is well founded and that it is
safe to make a finding of abuse.
likelihood of evidence, both oral and documentary, being available to
support a finding of abuse in relation to matters alleged which
burden which responding to an allegation is likely to impose on an
individual respondent or a management respondent weighed against the
benefit which is likely to accrue from investigating such allegation to the Commission in –
as complete a picture as possible of the occurrence of abuse in
institutions in the State in the past and the causes, nature,
circumstances and extent of such abuse and who was responsible for it,
public the result of its inquiries in the context that section 5(3)(c)
of the Act prohibits the publication of findings in relation to
particular instances of alleged abuse of children.
that the Commission’s remit is limited in time, the Commission is not
precluded from hearing, through its Committees, evidence of fact
relating to a period prior to the commencement of the relevant period
which is relevant to the investigation of abuse of children in
institutions during the relevant period. For example, in the case of an
allegation of sexual abuse of a child in an institution during the
relevant period, events which occurred prior to commencement of the
relevant period may be relevant in determining the state of knowledge
of the management of the institution at the time it is alleged the
abuse occurred and whether adequate measures were adopted to prevent
- Recommendation of Investigation Committee to Commission in relation to the commencement of the Relevant Period
considered the number of statements it has received from complainants
who wish to testify in relation to childhood experiences in
institutions before 1940, and the matters in respect of which they wish
to testify, in the light of the matters set out in section 4 of this
ruling and, in particular, paragraphs 4.7 and 4.8, the Investigation
Committee decided to recommend to the Commission that the year 1936 be
substituted for the year 1940 as the commencement of the functions of
the Investigation Committee. At a meeting held on 26th November 2002, the Commission determined to accept that recommendation.
making that recommendation, the Investigation Committee recognises
that, in relation to certain allegations of abuse which it
investigates, whether dating from before or after 1940, it will not be
in a position to make a determination or finding.
- Application of Determination of Commission to Complainant
effect of the determination of the Commission is that the Investigation
Committee does not have jurisdiction to inquire into the allegations of
the Complainant in relation to either Institution A or Institution B.
may have evidence which is relevant to the module of inquiry of the
Investigation Committee in relation to Institution B. The Investigation
Committee’s legal team should consider whether the Complainant has such
evidence and, if he has, he should be invited to testify in that
division expresses the hope that the Complainant will understand that
this decision is founded on principle and is based on the Commission’s
understanding of the proper interpretation of the powers which the
Oireachtas has conferred on the Commission and its Committees by the
Act viewed against the totality of the requests it has received to
testify. It is not based on any view of the truth of the Complainant’s
investigation of the Complainant’s allegations will cease. The parties
will be entitled to the legal costs of their participation in the
process to date, such costs to be taxed in default of agreement.