Irish Centre for Human Rights Blog

Dr Helen Kehoe is a legal researcher and solicitor. She recently successfully defended her doctoral research on legal remedies in international human rights law for historical practices of illegal adoption in Ireland.

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On 8 December 2020, the European Court of Human Rights ruled that three complaints (L.F. v Ireland, K.O’S. v Ireland, and W.M. v Ireland) regarding symphysiotomies were inadmissible. The complaints argued that the symphysiotomies carried out in 1960s Ireland were performed without the consent of the three complainants, violating their rights under the European Convention on Human Rights – Articles 3 (the prohibition of torture) and 8 (the right to respect for private and family life). As noted by the Court, symphysiotomy consists of cutting the fibres of the joint of the pubic bone to facilitate natural childbirth. The Court adopted a narrow approach, focusing on procedural issues such as the right to institute legal proceedings and how a State Party can use its discretion to limit that right (paras 103-109, L.F. v Ireland).

As noted by Professor Conor O’Mahony, this restrictive approach amounted to a failure to engage with what was really at the heart of these complaints – “whether conducting a controversial and outdated medical procedure on women without presenting them with alternatives and obtaining their express consent violated their human rights.”

It is also disappointing given how the Court approached the matter of State liability in the context of ‘historical’ child sex abuse complaints in primary schools. In O’Keeffe v Ireland, the Court used an altogether more pragmatic approach to overcoming the procedural hurdle of exhausting domestic remedies, as it held that the State must show, with examples of case law, how such domestic remedies for these types of claims might play out and succeed in the Irish courts. The ruling of inadmissibility in this context is somewhat surprising, given that arguably similar issues are in contention once again. Thematically, at least, there are similar questions of whether domestic remedies have been exhausted – what that means in practical terms for individuals taking civil action in Irish courts (e.g., overcoming the Statute of Limitations) – and a context of ‘historical’ rights violations in publicly funded institutional settings (i.e., hospitals). The use of the law to constrain and limit our understanding of the nature of human rights violations regarding ‘historical’ human rights violations of women and girls in Ireland is both disappointing and depressing. And yet for all those directly affected by such violations, and for human rights lawyers working in this area, it is an approach that is all too familiar.

An equally perturbing aspect of this decision is the ease with which it fits into the broader Irish context of using law to silence and inhibit survivors of ‘historical’ human rights violations of women and girls, be they related to settings of Mother and Baby Homes, County Homes, Magdalene Laundries or symphysiotomy. These violations are ‘historical’ in origin, but their treatment results in new and recurring violations concerning, amongst others, the right to truth, the right to personal records and information, and the right to dignity.

The legal approach in Ireland towards such violations has been fragmented and divisive. While there has been some acknowledgement of the widespread human rights violations (physical abuse, neglect, forced labour, forced adoption, non-consensual medical treatment, etc.) that occurred in the myriad of interconnected institutional settings throughout the 20th century, such acknowledgement has been limited and disjointed. This is reflected in the various legal mechanisms adopted (e.g., inter-departmental committees, expert commissioned reports, statutory bodies); the approach has been that each set of violations is examined separately and narrowly, parsing the types of abuses that may or may not have actually occurred, and occasionally raising questions over the veracity of survivors’ testimonies.

There are alternatives to this approach. The law does not have to be applied in such a narrow and restrictive manner, domestically or internationally. For example, the broader right to truth in international law aligns with the right to personal data in domestic law. Why doesn’t the State vindicate these rights to information by creating a public (in full or part) archive using the vast array of testimonies and institutional records gathered and collected by the mechanisms that have considered these issues? Why is there still no public commemoration or memorialisation of these institutional settings? Such settings were widespread and were used to fulfil many different roles in society, i.e., residential, educational, medical, punitive, etc. Why is there no State-funded or supported educational resources to discuss how these institutional settings came into being, their purpose, and their impact on Irish society?

There has yet to be any State attempt to create an accurate public record of what happened to the thousands of Irish citizens in these institutional settings. Separate archives are created by these distinct legal mechanisms and are just as quickly sealed with a curious urgency. Indeed, recent shocking revelations indicate that the secretive approach to such records is being intensified, as testimonies of survivors given to and recorded by the Mother and Baby Homes Commission of Investigation were deleted by the Commission.  Secrecy seems to remain sacred in modern day Ireland, as does deference to the past and maintaining the integrity of the national institutional framework (almost impenetrable in its scale) and the authorities that ran these settings.

The decision of the European Court of Human Rights to vindicate Ireland’s approach to long-held practices of symphysiotomies simply follows the same pattern. The implied casual shrug and attitude of indifference – “sure that’s how things were back then, what can be done now?” There is so much more that can be done by the State, both by way of legal remedies for survivors and in undertaking a broader reckoning with Ireland’s past.  It begins by taking responsibility for the damage caused by these institutional settings in stigmatising and traumatizing often the most vulnerable of women and girls in society. We must end the cycle of shaming and silencing that continues in our treatment of survivors; for example, we could begin by upholding the right to personal data and information, by amending the Statute of Limitations to allow civil litigation cases to proceed, and by recognising that reproductive violence was caused by the long-held practice of symphysiotomy in Ireland. The acknowledgment and recognition of these violations must be followed by providing effective legal remedies. Each is connected to the other. Otherwise, as a nation, we find ourselves still clinging to this cycle of secrecy and shameful silencing, out of a misplaced deference for the past.