Monday 21 October 2019

Bishops seem content to hide behind their lawyers

Refusal to share child abuse information is based on some mysterious advice, writes Colum Kenny

colum kenny

The Catholic bishops have refused point blank to explain publicly their refusal to publish legal advice that they claim has prevented them from sharing with the Health Service Executive (HSE) statistical information about child abuse that occurred in their dioceses.

At a special meeting of the hierarchy's Episcopal Conference last Friday, held as usual behind closed doors, bishops disagreed on the extent to which new measures were needed to protect children. My own efforts to understand their thinking have been frustrated by a one sentence statement from their spokesman.

It emerged this month that a major HSE audit of child protection practices in Catholic dioceses has been stymied by bishops refusing to fill in the audit's crucial fifth section. After their meeting last Friday, the bishops promised "to renew their commitment to providing all of the information requested in Section 5 of the HSE audit". But their promise is ambiguous and could still mean that they will only provide the information if and when the government changes current law.

It has emerged that, nearly two years ago, Professor Brendan Drumm, head of the HSE, brought this problem to the attention of the then Minister for Children Brian Lenihan. Drumm told Lenihan in 2007 that, "whilst not explicitly saying so, the similarities in the Bishops' individual correspondence implied that their stance was based on collective legal advice".

So why have the bishops refused to publish that legal advice, and why did they not explicitly tell Prof Drumm that they had sought it collectively? The bishops have confirmed to me that they did in fact seek the legal advice as a group. However, it is hard to see how any legal advice could prevent them from providing to the HSE information which does not identify individuals.

The bishops are not willing to discuss even this general aspect of their legal opinion. Given the extent of public unease about their handling of child abuse, one might think that the hierarchy would be eager to share data on the problem and would wish to explain as clearly as possible what their lawyers said.

The state accepts that there are problems about exchanging information with relevant agencies about specific allegations of abuse. The problems were identified more than three years ago in the Ferns report and the government has so far failed to introduce changes in the law that it admits are necessary.

But it is far from clear that such changes are needed before even basic anonymous statistical data may be released by bishops.

Publication of their legal opinion in this respect could help Minister for Children Barry Andrews to avoid mistakes when he eventually gets around to changing the law in line with the Ferns recommendations, (as he recently promised he might do before July next).

I put the following questions to the hierarchy almost two weeks ago, to understand better the process by which the bishops responded to the HSE audit of child abuse procedures by partly blocking it:

1. Who made the decision to seek a collective legal opinion in respect of the HSE audit, and how was that decision made (e.g. at a meeting)?

2. Who has the power/right to decide to release to me that legal opinion or even just that part of it relating to Section 5 of the HSE audit?

3. May I now have that legal opinion or that part mentioned above, exclusive of any reference to particular identifiable individuals?

4. If the answer to Question 3 is 'No', what reason is there for refusing to put it into the public domain for all members of the church and others to see the opinion of lawyers as to why the bishops were not free to respond fully to the HSE audit?

The bishops are not obliged to answer questions from the media, even if one hopes that they might do so as a way of communicating with the faithful and with the wider public. On this occasion they declined to answer my questions beyond saying that, "The legal advice will not be released by the hierarchy at this point".

Unlike a legal company, the bishops are not "the board" of the Irish Catholic Church. They are a loose collection of individuals who in Church law answer directly to the Pope. When it suits them, all bishops act as a unit, but they cannot force individual bishops to do what the group feels is right.

The bishops' refusal to enter into dialogue about their decision, or even to reveal the procedures that were adopted, may be no more than the traditional disinclination of Irish bishops to account for themselves or to behave transparently. But it does nothing to dispel suspicions that they have more to hide than has already emerged.

Their reliance on lawyers also raises questions about the nature of their mission. In a recent judgement, a survivor of sexual abuse failed in her efforts to sue the Minister for Education in respect to her abuse by a national school principal in Co Cork. She failed because the Supreme Court held that her employer was not the state but was in fact local Church authorities. That is the way that education in Ireland has long been organised, despite massive State funding.

Some people were puzzled as to why the woman had not sued her local bishop and the present school principal, rather than the minister. The reason was, it seems, partly because of old legal principles that have been taken to mean that one bishop may not be held responsible for actions of an earlier bishop.

Are the bishops happy to hide mutely behind legal opinions when it comes to matters of child care? Are they satisfied that this is the best way to bear witness to the values that they purport to represent on earth?

Now, if only Jesus had had a good lawyer.

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