At the time of writing, the redress scheme for victim/survivors of non-recent institutional abuses in residential care in Northern Ireland has come to an end. At the same time, the NI Executive is considering localised memorials for survivors in further fulfilment of the recommendations of the Hart Inquiry into Historical Institutional Abuses which reported in 2017. Elsewhere, including within Northern Ireland, the Republic of Ireland, and Scotland, a number of official investigations are underway as part of the state’s approach to delivering ‘justice’ for victim/survivors of institutional abuse. There are also ongoing debates about the appropriateness of statutory frameworks around redress. Similar processes and debates echo around the world including in Canada, Australia and Belgium. It is a timely juncture, therefore, to consider what might ‘justice’ mean for individual survivors; what might this look like in practice; and what are some of the key challenges that need to be addressed?
Over the last three years, a team of researchers based at Queen’s University Belfast (Prof Anne-Marie McAlinden), University College Dublin (Prof Marie Keenan), and Dublin City University (Dr James Gallen) has examined justice responses to non-recent institutional abuses across the island of Ireland, North and South, and internationally. This major research project was funded by the Higher Education Authority’s North-South Research Programme, with support from the British Academy and an Arts and Humanities Research Council Fellowship. It adopted an interdisciplinary perspective (eg across law, criminology, history, political science, sociology, and social policy) and was based on extensive primary research including media and documentary analysis, a survey of religious organisations, and in-depth semi-structured interviews (n=74) with key stakeholders such as church and state officials, legal and criminal justice professionals, and victim/survivors and advocates.
One of the central tasks was to examine victim/survivor experiences of a range of justice processes (eg inquiries/official investigations; redress schemes; apologies; and conventional justice in the form of civil and criminal actions as well as human-rights based proceedings); barriers to justice; and ultimately how the range of justice processes could be improved for all stakeholders. As a necessary starting point, therefore, in taking account of survivor lived experiences and the need to improve these, justice is considered as a process rather than simply an outcome.
It is well-established in the academic literature, however, that ‘justice’ has a range of forms and meanings, including not only ‘substantive/ adversarial justice’, ‘procedural justice’ – and the perceived fairness of the process – but also ‘restorative justice’ and ‘transitional justice.’ To date, however, adversarial justice, with its emphasis on a formal, bi-partisan and overtly legalistic approach, has dominated justice processes for non-recent institutional abuses, including within the context of inquiries, redress schemes and apologies. In particular, adversarial approaches and the dominance of legal culture and lawyers have impeded engagement between victim/survivors and institutional actors where defensive mechanisms have been employed to avoid accountability or responsibility for non-recent institutional abuses. One of the key challenges, therefore, becomes, addressing legal culture and the use of legal frameworks alone as the front and centre official response to emerging abuse crises.
Moreover, justice is deeply personal and individualised for survivors. While there are common elements in survivor experiences, including the types of harms suffered and the experiences of official processes, there are diverse understandings of what it means for church and state actors to be held accountable or take responsibility for non-recent institutional abuses. That is, not all survivors want the same thing from justice processes.
For many, acknowledgement and the ‘truth’ of their experiences are fundamental to dealing with the legacy of non-recent institutional abuses whether through a meaningful apology or a comprehensive official investigation which takes full account of survivor experiences. For others, however, access to monetary redress and a range of support services (eg counselling and health) are necessary to address the often intergenerational and intersectional harms stemming from non-recent institutional abuses. For others still, no form or amount of justice, however well-conceived, can ever hope to address the harms relating to their abusive experiences.
However, the failings of justice processes to date, and the fact that many victim/survivors are left feeling traumatised after engaging with them, points to the need to consider new ways of doing justice for non-recent institutional abuses. Indeed, there was broad agreement among the interview participants in the study, including not only victim/survivors but also church and state officials, that there is need for a new approach and to think more innovatively and creatively about justice responses to non-recent institutional abuses.
In this sense, some of the key principles and values of restorative justice, transitional justice and transformative justice, have been employed in our analysis and may be helpful. These include thinking about justice and accountability and responsibility at the relational level; the need for structural reforms and changes to institutional and societal thinking about how we respond to perceived harms; and the need to build trust between victim/survivors, the state, religious organisations and society.
At a practical level, some key reforms to current justice process which we propose could be considered include:
i) transforming legal culture with trauma-informed approaches and the use of non-legal or non-technical language as standard;
ii) transforming truth-seeking processes via victim-centric approaches to inquiry design, modularised approaches to investigation which report findings sooner, and the consideration of alternative non-adversarial modes of truth-finding;
iii) transforming reparations by recognising redress as a human right, avoiding putting survivors ‘on proof’ a second time after inquiry processes, and accompanying redress with acknowledgement in the form of a personalised and individualised apology.
In seeking more effective justice processes which represent better experiences for victim/survivors and fair outcomes for all stakeholders, some recurring issues remain. Pivotal to this is giving survivors access to their personal records as of right. At a fundamental level, having access to records is central to the personal journey of survivors and in particular to dignity and identity. This also includes cross-border access to records across the island of Ireland, North and South, and the need for information sharing across and between agencies.
More broadly, the access to records issue also highlights that justice responses to non-recent institutional abuses are composite and need to be considered in a holistic and consistent way. That is, without access to records survivors are inevitably limited in the extent to which they can prove the dates of their institutionalisation which has knock-on effects for establishing ‘truth’ within inquiries and for the seeking of monetary redress. In this sense, the absence of follow-through by church and state actors in providing access to records, may also negate the sincerity of other justice responses such as apology or the official acceptance of inquiry findings.
There are several formidable challenges inherent to seeking a new approach to justice in this sphere, such as the temporal challenges of doing justice over time, untangling the historical complexities of non-recent institutional abuses and the shared involvement of church, state, families and society. However, in considering a new way we suggest a hybrid approach to justice encompassing both conventional and innovative approaches which have the potential to increase engagement by victim/survivors, promote deeper and more meaningful engagement with and by institutional and state actors; and ultimately improve justice processes and outcomes for all.
A new monograph written by Prof Anne-Marie McAlinden, Prof Marie Keenan and Dr James Gallen and published by Oxford University Press, Transforming Justice Responses to Non-recent Institutional Abuses’, is available open access and to download for free by clicking here.
The book’s findings have been summarised for non-academic audiences in two policy reports – a full and summary version – which are available to download by clicking here.
See also the Transforming Justice Project website for the full range of outputs.
