B.F. v Residential Insitutions Redress Board and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 14 March 2014
• Neutral Citation: [2014] IEHC 129
• Court: High Court
• Date: 14 March 2014

[2014] IEHC 129

THE HIGH COURT

Record no. 442/JR/2012

F (B) v Residential Institutions Redress Board & Ors

JUDICIAL REVIEW

Between/

B. F.

Applicant

AND

THE RESIDENTIAL INSITUTIONS REDRESS BOARD, THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

Respondents

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(1)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(3)

O'KEEFFE v BORD PLEANALA 1993 IR 39

O' B (J) v RESIDENTIAL INSTITUTIONS REDRESS BOARD (RIRA) UNREP O'KEEFFE 24.6.2009 2009/43/10809 2009 IEHC 284

G (M) v RESIDENTIAL INSTITUTIONS REDRESS BOARD (RIRA) UNREP KEARNS 9.8.2011 2011/22/ 5833 2011 IEHC 332

G (A) v RESIDENTIAL INSTITUTIONS REDRESS BOARD (RIRA) UNREP HOGAN 6.11.2012 2012/16/4476 2012 IEHC 492

K (T) v RESIDENTIAL INSTITUTIONS REDRESS BOARD (RIRA) UNREP PEART 8.2.2013 2013 IEHC 52

Judicial review - Application for redress - Application out of time - Exceptional circumstances - State of knowledge - Impairment of capacity falling short of legal unsoundness of mind

The applicant, B.F., spent approximately one year in St Vincent”s Industrial School in Goldenbridge during his youth. He claimed that while there, he suffered physical abuse and lived in constant fear. In May 2011, he made an application to the first named respondent, the Residential Institutions Redress Board (the Board) for redress. The Board was established under the provisions of the Residential Institutions Redress Act 2002. Section 8 (1) of this Act provided that applications for redress were to be submitted within three years of the establishment of the Board. B.F.”s application was therefore out of time. Section 8 (2), however, set out that the time for receiving applications could be extended where exceptional circumstances existed. On the 6 ^th of March 2012, the Board determined that there were no exceptional circumstances in this case. The applicant was granted leave to seek an order of certiorari in respect of the decision.

On the day of the hearing before the Board, a report was submitted by a consulting psychiatrist, Dr Devitt. This report set out the applicant”s family and personal circumstances as well as his physical and mental health difficulties. It was noted that the applicant had a long history of depression and ‘para-suicidal tendencies’. It was also noted that the applicant”s marriage broke up in 2000, that his second relationship broke up in 2002 and that he had not had a home of his own since then. Moroever, he had not worked since 2006. At the time of interview with Dr Devitt, the applicant was attending psychiatric outpatient services and had been since January 2010. On being asked why he didn”t apply for redress sooner, the applicant referred to these difficulties as well as the fact that he was ‘drinking heavily at the time’ and that he felt ‘ambivalent’ about ‘such a shameful thing’. Taking all of these factors into account, Dr Devitt concluded that the applicant had not been in a position to place his attention on his entitlement to apply and that his case did involve exceptional circumstances. The Board rejected this on the basis that as the applicant was physically able to work during this period—he was also able to make an application for redress at the relevant time.

Held by the Court, this was not a case where awareness of the existence of the redress legislation— the ‘state of knowledge’ of the applicant, was a relevant factor. The Court determined that, following TK v RIRB, there was a category of case involving ‘impairment of capacity falling short of legal unsoundness of mind’. The Court found that the Board fell into error in reaching the conclusion it came to. The issue was whether the applicant was ‘emotionally and cognitively capable of addressing the issues’ relating to the application—not whether he was physically able to attend a solicitor. While there was no evidence to suggest that he was capable, there was evidence, supported by Dr Devitt, to suggest that he was not. The decision of the Board failed to consider the long-standing depression of the applicant and the views of Dr Devitt that this was inadequately treated.

The decision was therefore quashed.

Introduction

1 The applicant is a 55-year old man who, in his childhood, spent approximately one year in St. Vincent's Industrial School in Goldenbridge. He says that while there he suffered physical abuse and lived in constant fear. On the 26 ^th May, 2011 he made an application for redress, through his solicitor, to the first named respondent ("the Board").

2 The Board was established under the provisions of the Residential Institutions Redress Act, 2002, on the 16 ^th December, 2002. By virtue of s. 8(1) applications for redress were to be submitted within three years of the establishment - in other words, by the 15 ^th December, 2005. However, s. 8(2) enabled the Board, at its discretion and where it considered there were exceptional circumstances, to extend time for reception of an application. The applicant's case therefore fell to be considered pursuant to that provision.

3 Although it is not in issue in this case, it may be worth noting that sub-section (3) provides for a mandatory extension of time, where the Board is satisfied that an applicant was under a legal disability by reason of unsound mind at the time when such application should otherwise have been made.

4 An oral hearing on the issue was held by the Late Applications sub-division of the Board on the 13 ^th December, 2011 at which the applicant was represented by solicitor and counsel. By decision dated the 6 ^th March, 2012 the Board determined that there were no "exceptional circumstances" within the meaning of s.8(2) of the Act such as to allow it to exercise its discretion to extend time.

5 By order of the High Court (Peart J.) made on the 21 ^st May, 2012, the applicant was granted leave to seek an order of certiorari in respect of the decision. Leave was also granted to seek declarations as to the constitutionality of the Act and particular s.8(2) thereof but these have not been pursued and the court is concerned only with the relief sought against the Board.

The factual background

6 The applicant has not sworn an affidavit for the purposes of these proceedings. However, his solicitor has, and has exhibited the application form, medical documentation and the determination of the Board. The registrar of the Board has exhibited further correspondence and a copy of the transcript of the oral hearing.

7 Upon receiving the application form, the registrar of the Board wrote on the 2 ^nd June, 2011 to the applicant's solicitor making a number of enquiries as to the application, including a question as to when the applicant had first become aware of the existence of the Board. With particular reference to the advertising campaign carried out by the Board from December 2002 to December 2005, she asked whether any of the advertisements had been seen by the applicant. She also requested an explanation as to what exceptional circumstances prevented the applicant from filing an application a) before December 2005 and b) between that date and the date of actual application.

8 The applicant's solicitor responded on the 8 ^th August, 2012 stating that the applicant had been aware of the existence of the Board from news reports before the December 2005 deadline. However, he first became aware that he might be entitled to file an application when his sister-in-law gave him the solicitor's contact details in or around May 2011. It was stated that he did not see any of the advertising campaign and that during that time he was suffering from depression.

"In 2000 - 2005 he was trying to deal with things and subsequently was prescribed medication in 2006. During the same period his daughter was going through a very hard time. She started to get addicted to painkillers and nurofen, the Applicant had to help her… whilst trying to deal with his own depression. In 2007, the Applicant's GP, Dr Thomas Fields, recommended that he see a psychiatrist and he has been on medication for the last 24 months."

9 There was then reference to the treatment he had received and was receiving at the time.

10 A report by a consultant psychiatrist, Dr. Patrick J. Devitt, was submitted to the Board on the day of the hearing in support of the application. The report was based on an interview with the applicant, letters of instruction from the applicant's solicitor and medical records. It sets out his family and personal circumstances and his physical and mental health difficulties. There is specific discussion of the reasons why the applicant had not made an earlier application for redress and conclusions are drawn in relation to this issue.

11 The applicant was born in 1958 and lived as a child in Dublin's inner city. His father apparently received a prison sentence while the applicant was a child, and while that sentence was being served the applicant's mother had an affair. His father subsequently attacked the man in question with an axe. The family had to move as a result and the applicant and one sibling were placed in Goldenbridge. While there he was subjected to physical and mental suffering.

12 It appears that the applicant learned these details of his family history at a relatively late stage in his life, his mother having refused to tell him before her death in 1997.

13 The applicant left school at the age of 14. He worked at various job until joining the Army at the age of 18. He left that at the age of 21 with an honourable discharge. After that he worked as a bricklayer until 2006. He got married in 1980, and had three children. There appears to have been some degree of violence on his part during the marriage, which broke up in 2000 because he was having an affair. That...