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Can ‘inquiries’ deliver ‘justice’ for victims/survivors of nonrecent institutional abuses?

Updated: Jul 19, 2023

By Prof Anne-Marie McAlinden - Queen’s University Belfast - 26.06.2023

Many jurisdictions across the world, including Canada, the United States of America, Australia and Europe, have grappled with devising official responses to past institutional abuses of women and children. This has encompassed abuses within a range of contexts including residential care settings (such as care homes, industrial schools, workhouses, mother and baby institutions and ‘Magdalen laundries’) as well as within medical or health settings; past abuses by members of religious organisations (such as ‘clerical sexual abuse’); as well as forced removal of children from their families where many suffered abuse and neglect whilst in and out of institutional care (such as within the context of forced adoption or ‘fostering’). As this broad but non-exhaustive list indicates, abuses and harms include not only physical, sexual, emotional abuse and neglect but also a range of human rights abuses such as forced and unpaid labour, coerced adoption, institutional racism, inhuman and degrading treatment and denial of educational opportunities. Moreover, the term ‘institutional abuses’ also recognises not just ‘abuses’ committed within institutional settings as harm, but the ‘othering’, categorisation of individuals and institutionalisation per se as policy wrongs.


In response to emerging cases and advocacy campaigns, official responses by states common to many jurisdictions have encompassed apologies, monetary redress schemes, and memorialisation. These have also been accompanied by civil suits brought by victims/survivors and a small number of prosecutions of individual ‘perpetrators.’ Within this gamut of responses, front and centre are ‘inquiries’ – in the form of public inquiries, tribunals of inquiry or commissions of investigation and even Royal Commissions – as the vanguard of state responses to historical wrongdoing. Ireland in particular has had a concentration of ‘inquiry’ mechanisms including principally tribunals of inquiry and commissions of investigation within the last two decades.


Previous and ongoing empirical research that I and others have conducted within Northern Ireland and the Republic of Ireland (see e.g. McAlinden, 2022a, 2022b; Lundy, 2020; McAlinden et al. 2024) demonstrate that victims/survivors want or need a number of core elements from broader justice or redress processes. In brief, this encompasses: Truth – knowing what happened to them and why; and who was responsible. Acknowledgement – explicit naming of the wrongs and validation of their experiences. Accountability – holding individuals and institutions and even wider society to account. Procedural Justice – ensuring fair and inclusive decision-making processes as well as outcomes. Follow-through – putting in place timely and responsive measures including the fulfilment of promises on tangible reparations such as monetary redress. Non-recurrence – committing to policy or ideological change to prevent it happening again.


There are a number of acknowledged strengths of inquiry processes in terms of benefits not only for victims/survivors but also wider society. Chief among these are establishing facts and holding individuals and organisations to account; social and political acknowledgement of systemic wrongdoing; as well as awareness raising and providing the impetus for policy and legal reform by learning from past failures. Inquiries may also provide victims/survivors with access to other avenues of justice and redress such as criminal prosecution or compensation schemes. However, a myriad of issues such as the composition of commissions without broad and wide-ranging expertise; lack of independence from the state; and a compartmentalised or narrow approach to investigating particular contexts or forms of abuse to the neglect of others, may also hinder the perceived effectiveness and fairness of inquiries in terms of both their processes and outcomes. In practice, despite the fact that they often come about as a result of long and hard-fought campaigns by victims/survivors and advocacy groups, many inquiry models to date have been dominated by formal adversarial and legalistic approaches which are fundamentally at odds with what victims/survivors want from justice processes. Indeed, inquiries are more limited in their capacity to meet some of the core ‘justice’ needs of victims/survivors identified above including truth, acknowledgment and procedural justice. For example, justice processes designed by elites with politically orientated goals may obscure a true victim focus; the sampling of cases and failure to acknowledge or include the testimonies of all survivors may undermine the voices of victims/survivors and their participation; and ‘truth-seeking’ is inevitably dependent on the testimonies of individual ‘offenders’ or organisational representatives who may not engage openly with inquiry processes for fear of the legal or reputational consequences.



In recognition of these deficits inherent to formal inquiry mechanisms, other jurisdictions have opted for alternative models. For example, in Canada, the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) centralised victims by adopting a holistic approach: (1) there was extensive consultation at the pre-inquiry stage resulting in terms of reference which were focused on the underlying causes of violence; (2) participation in the Inquiry was open to all victims/survivors and family members who could share their testimony at Community Hearings either publicly or privately; (3) experts, front-line workers and non-governmental organisations participated in hearings and the offering of recommendations; (4) the final report drew heavily on the testimonies of victims/survivors and family members reflecting the key concerns of victims/survivors and the real-impacts on individuals, families and communities. Thus, extensive consultation and meaningful participation prioritised the needs and voices of those affected by past abuse, further allowing them an active role in determining how their experiences should be addressed.


Hybrid models which comprise therapeutic or restorative elements along with more formal investigative frameworks are also potentially more effective for victims/survivors (see McAlinden and Naylor, 2016). More recently, in Northern Ireland, for example, the proposal by the Truth Recovery Design Panel on mother and baby institutions, Magdalen laundries and workhouses includes an ‘integrated truth investigation model’ comprised of an independent panel where victims/survivors can present their testimonies in a non-adversarial setting along with a statutory public inquiry informed by the findings and work of the independent panel (Mahon et al, 2021). This combined model would potentially meet some of the core cathartic needs of victims/survivors in terms of telling their stories and validation of their experiences together with formal powers to establish individual and institutional responsibility via a formal inquiry.


The learning from previous inquiries and indeed alternative models which have been used or proposed to date indicates that there are a number of core principles to be adopted in designing inquiry frameworks which hope to deliver truth, accountability and procedural justice for victims/survivors. Incorporating the core needs and interests of victims/survivors and addressing some of the principal weaknesses of inquiry structures outlined above means adopting a more holistic approach to inquiries which centralises the following core principles: ‘Collaborative redress’ – consulting widely with victims/survivors from the outset and ensuring their full and meaningful participation in the design and operation of processes. A victim-centric approach – recognising the diversity of victims/survivors, their individual experiences and needs, and that victims/survivors are the experts in their own experiences. Trauma and care-informed approach – offering supportive, person-centred spaces to hear victim/survivor voices; recognising the need for equality of arms with the state/churches; and providing tailored support throughout. Human rights obligations – explicitly recognising national and international human rights obligations and framing abuses as gross violations of human rights. Removing legal barriers – removing barriers to accessing justice such as statutes of limitations; protective cost orders; class actions; provision of legal aid; and victim/survivor access to archives. Consistency and follow-through – timely and thorough fulfilment of the recommendations of inquiries and ‘joined up’ thinking in devising local, national and international approaches.


Delivering justice for victims/survivors of non-recent institutional abuses also means being honest and open with victims/survivors in terms of official promises to comprehensively address the legacy of non-recent abuses and what they can realistically expect to deliver. For state leaders, there is usually a stark but largely unacknowledged choice here. The potentially competing tension lies between a victim-centred, comprehensive, modularised inquiry mechanism with interim reports – akin to the lauded Australian Royal Commission into Institutional Responses to Child Sexual Abuse – and the more typical narrowly focused inquiry or commission of investigation based on case sampling or particular contexts or forms of abuse with reduced length and expense. At a fundamental level, however, delivering justice for victims/survivors via inquiry mechanisms means that states and organisations need to ensure that victims/survivors are actively listened to from the outset in terms of their experiences, wants and needs and that they are ultimately believed.


If you have been affected by any of the issues raised in this article, you can contact Dignity4Patients, whose helpline is open Monday to Thursday 10am to 4pm.

 

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