D (J) (applicant/respondent) v Residential Institutions Redress Committee (respondent/appellant)

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Murray C.J.
• Judgment Date: 27 July 2009
• Neutral Citation: [2009] IESC 59
• Court: Supreme Court
• Date: 27 July 2009

D (J) v Residential Institutions Redress Review Committee & Ors

[2009] IESC 59

BETWEEN

J.D.

APPLICANT / RESPONDENT

AND

RESIDENTIAL INSITUTIONS REDRESS REVIEW COMMITTEE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS / APPELLANTS

[2009] IESC 59

Murray CJ.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

405/08; and 410/08

THE SUPREME COURT

CONSTITUTION

Statute

Validity - Residential Institutions Redress Scheme - Definition of "child" - Classification on grounds of age - Equality - Discrimination - Purpose of Act - Whether legitimate legislative purpose to age limit - Presumption of constitutionality - Brennan v AG [1983] ILRM 449; Re Employment Equality Bill 1996 [1997] 2 1R 32; Re Planning and Development Bill 1999 [2000] 2 IR 321; Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604; Abdulaziz v UK (1985) 7 EHRR 471; Von Hannover v Germany (2004) 40 EHRR 1; X and Y v Netherlands (1985) 8 EHRR 235 and Sidabras v Lithuania (2004) 42 EHRR 104 considered - Residential Institutions Redress Act 2002 (No 13), ss 1 and 7- Constitution of Ireland, Article 40.1- Respondents' appeal allowed (405 & 410/2008 - SC - 27/7/2009) [2009] IESC 59

D(J) v Residential Institutions Redress Board

HUMAN RIGHTS

Private and family life

Prohibition of discrimination - Obligation on State - Voluntary enactment of redress scheme - Absence of State responsibility for abuse - Events occurring before statute became operative - Engagement of rights - Whether definition of âÇÿchild' incompatible with Convention - Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604; Abdulaziz v UK (1985) 7 EHRR 471; Von Hannover v Germany (2004) 40 EHRR 1; X and Y v Netherlands (1985) 8 EHRR 235 and Sidabras v Lithuania (2004) 42 EHRR 104 considered - Residential Institutions Redress Act 2002 (No 13), ss 1 and 7- Constitution of Ireland, Article 40.1- European Convention on Human Rights Act 2003 (No. 20), s. 2 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 8 and 14 - Respondents' appeal allowed (405 & 410/2008 - SC - 27/7/2009) [2009] IESC 59

D(J) v Residential Institutions Redress Board

Facts: the applicant’s application for redress was refused on the ground that she had not been a child within the meaning of section 1(1) of the Act 2002 when she had been placed in an institution. She was granted leave to seek judicial review of the decision of the respondent on the basis, inter alia, that the definition of “child” contained in the Act of 2002 was contrary to Article 40.1 of the Constitution by being discriminatory in that it established differences of treatment between people who were under 21 on the date she entered the institution, all of whom should be treated equally. She also obtained leave on the ground that the legislation was not in conformance with the obligations of the State pursuant to the combined basis of Articles 8 and 14 of the European Convention on Human Rights in that the definition of “child” constituted discrimination. The respondent appealed the decision of the High Court to grant the applicant a declaration that the Act of 2002 was unconstitutional to the Supreme Court. The applicant cross-appealed the decision of the High Court to dismiss the application for a declaration, pursuant to section 5 of the European Convention on Human Rights Act 2003 that section 1 of the Act of 2002 offended the provisions of the European Convention on Human Rights.

Held by the Supreme Court (Murray CJ) in allowing the appeal and dismissing the application for judicial review based on the allegation that the Act of 2002 was unconstitutional that any person wishing to challenge the compatibility of a provision of an Act of the Oireachtas with the Constitution had to overcome and rebut the principle of the presumption of constitutionality which operated in favour of the impugned provision. Almost all legislation addressed to the regulation of society resorted to some form of classification and age was frequently used as a classification of inclusion or exclusion for various legislative purposes. There was nothing in such classification that was invidious, unfair or discriminatory. In deciding, as a matter of policy, to establish a special scheme of redress for abused children, the Oireachtas necessarily had to define the scope and limits of its application and the choice of an age limit of 18 constituted a legitimate legislative designation of the persons who naturally and normally have been described as children.

Held by the Supreme Court (Fennelly J) in dismissing the cross-appeal of the applicant and the application for a declaration pursuant to section 5 of the Act of 2003 that the definition of “child” in section 1 of the Act of 2002 was compatible with the obligations of the State pursuant to the European Convention on Human Rights. The alleged abuse had occurred before the entry into force of the Act of 2003, which did not apply retrospectively. There was a clear distinction between the obligations of the State by its laws to protect Convention rights and the voluntary enactment by the State of a scheme for redress for abuse suffered in the past. In the first case, the State was bound to provide protection for victims of criminal infringement of Convention rights. The State, in enacting the Act of 2002 was not indirectly attracting to itself Convention obligations derived from the actions of other persons committed in the past.

Reporter: P.C.

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S1(1)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S4

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S1

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(1)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S2

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7(4)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7

CONSTITUTION ART 40.1

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

BUCKLEY & ORS (SINN FEIN) v AG & ANOR 1950 IR 67

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, IN RE 2000 2 IR 321 2001 1 ILRM 81 2000/16/5933

CONSTITUTION ART 15

ART 26 OF THE CONSTITUTION & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758

AGE OF MAJORITY ACT 1985

GUARDIANSHIP OF INFANTS ACT 1964 S2

STATUS OF CHILDREN ACT 1987 S9

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 2005 2 ILRM 288 2005/17/3473 2005 IESC 33

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 (ADDITIONAL INSTITUTIONS) ORDER 2004 SI 518/2005

X & Y v NETHERLANDS 1986 8 EHRR 235

SIDABRAS & DZIAUTAS v LITHUANIA 2006 42 EHRR 6

H (D) v CZECH REPUBLIC 2008 47 EHRR 3

ADBULAZIZ & ORS v UNITED KINGDOM 1985 7 EHRR 471

VON HANNOVER v GERMANY 2005 40 EHRR 1 2004 EMLR 21

1 JUDGMENT of the Court delivered by Murray C.J. on the 27th day of July, 2009

2 Judgments delivered by Murray CJ Fennelly J (nem diss)

3 By his judgment dated 10 ^th November 2008, O'Neill J, held that the definition of "child" in section 1 of the Residential Institutions Redress Act, 2002("the Act of 2002") was invalid having regard to the provisions of the Constitution. The above-named applicant/ respondent's application for an award before the Residential Institutions Redress Board ("the Board") had been rejected because she had narrowly failed to satisfy that definition. The respondents have appealed against the order of the High Court made 2 ^nd December 2008 pursuant to the judgment of O'Neill J.

4 The broad purpose of the Act of 2002 is to provide compensation for persons who, during childhood, suffered abuse in residential institutions in the State. The respondent was born on 31 ^st October 1950. She claimed that she had been sexually abused by her brothers at home and had become pregnant. She was placed by her mother in St Patrick's Mother and Baby Home, Navan Road, Dublin (hereinafter "the Home") in November 1968. Her 18 ^th birthday occurred 11 days before she entered the Home. On 31 ^st December 1968 she gave birth to a son. Her son was taken from her and placed for adoption. She left the Home in April 1969. The respondent's younger sister, who also alleged that she had been abused by her brothers, and that she had become pregnant as a result, entered the Home on the same day. She, however, was then under the age of 18.

5 On 5 ^th May 2005, the respondent applied in writing to the Board for redress in relation to her treatment at the Home. On 6 ^th July 2005 the registrar of the Board informed the respondent's solicitors that her application was being refused on the ground that she had not been a child within the meaning of section 1 (1) of the Act of 2002 when she was placed in the Home. Her solicitor appealed to the Residential Institutions Redress Review Committee, which is the first named appellant. On 6 ^th October 2006, the first named appellant affirmed the decision. The reasons provided by the Review Committee in its written decision included the following:

"The act does not apply to exclude any person by reference to their status as a minor or an adult. The legislation confers a particular remedy on persons who at a particular age, clearly specified in the legislation, were abused while a resident in certain identified institutions. There is no ambiguity as to the age limits identified by the legislature. There is no room or need to invoke any special canon of interpretation. Neither the Board nor this Committee could award redress to a person...