D (J) v Residential Institutions Redress Review Committee and Others

JurisdictionIreland
JudgeO Neill J.
Judgment Date11 November 2008
Neutral Citation[2008] IEHC 350
CourtHigh Court
Date11 November 2008

[2008] IEHC 350

The High Court

[No. 1343 J.R./2006]
D (J) v Residential Institutions Redress Review Committee & Ors
J. D.
Applicant

And

The Residential Institutions Redress Review Committee, Ireland

And

Attorney General
Respondents

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS 4.11.1950

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S1

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7(1)(b)

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

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S1(1)

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS 4.11.1950 ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS 4.11.1950 ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS 4.11.1950 ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000

BLASCAOD M ÓR TEORANTA v COMMISSIONERS OF PUBLIC WORKS (NO 3) 2000 1 IR 6

ENRIGHT v IRELAND & AG 2003 2 IR 321

O'BRIEN v KEOGH 1972 IR 144

LANDERS v AG 1975 109 ILTR 1

DPP (STRATFORD) v O'NEILL 1998 2 IR 383

IN THE MATTER OF ART 26 OF THE CONSTITUTION & THE EMPLOYMENT EQUALITY BILL 1996 1997 2 IR 321

DE B ÚRCA v AG 1976 IR 38

QUINN'S SUPERMARKET LTD v AG 1972 IR 1

BRENNAN & ORS v AG & WEXFORD CO COUNCIL 1983 ILRM 449

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

SCHMIDT v GERMANY 1994 18 EHRR 513

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7(4)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S13(10)

CONSTITUTIONAL LAW

Statute

Validity - Residential Institutions Redress Scheme - Equality - Discrimination on grounds of age - Definition of âÇÿchild' - Purpose of Act - Whether legitimate legislative purpose to age limit - Brennan v Attorney General [1983] ILRM 449, The Employment Equality Bill 1996 [1997] 2 1R 321, Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 and Schmidt v Germany (1994) 18 EHRR 513 considered - Residential Institutions Redress Act 2002 (No 13), ss 1 and 7 - European Convention on Human Rights Act 2003 (No 20), s 2 - Constitution of Ireland, Article 40.1 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 8, 13 and 14 - Definition of child declared unconstitutional (2006/1343jr - O'Neill J - 11/11/2008) [2008] IEHC 350

D(J) v Residential Institutions Redress Review Committee

Facts: The applicant alleged that her exclusion from the Residential Redress Scheme, as set out in the Residential Institutions Redress Act 2002, which limited compensation to those under the age of eighteen years of age, was unconstitutional and in breach of Article 40.1 and the European Convention on Human Rights.

Held by O’ Neill J. that the definition of child as set out in the Act of 2002 amounted to invidious discrimination. The setting of an age limit was inherently discriminatory and the burden of proof had shifted to the State to justify the distinction. It had not been demonstrated that the decision to limit the scheme to those under eighteen years of age had a legitimate legislative purpose. The arbitrariness was evident from a comparison of the applicant with her sister, who benefitted from the scheme. The possibility of a person between eighteen and twenty one years of age being a resident had seemed remote. Striking down the legislation would be of benefit to the applicant. The entitlement to claim redress for abuse occurring prior to 2003 entailed that the European Convention on Human Rights Act 2003 was not engaged and the Convention claims failed.

Reporter: E.F.

1

O Neill J. delivered the 11th day of November, 2008 .

2

Leave was granted in this case by this Court (Peart J.) on 20 th November, 2006 to pursue the following reliefs by way of judicial review:

3

1. An order of certiorari quashing the decision of the first named respondent dated 6 th October, 2006 to the effect that the applicant failed to satisfy the criteria of s. 7(1) of the Residential Institutions Redress Act 2002 (the Act of 2002).

4

2. An order for damages against the respondents for the losses suffered by the applicant arising out of the said decision of 6 th October, 2006.

5

3. A declaration that the definition of " child" and cognate words including " childhood" in the Act of 2002 shall be interpreted in accordance with the meaning of those terms and the status then accorded the applicant in Irish law when sent to a residential institution within the meaning of the said Act in the late 1960s.

6

4. A declaration that the definition of " child" and cognate words including " childhood" in the Act of 2002 shall be interpreted in accordance with the legal meaning and interpretation then accorded to such expressions in the late 1960s and further to the jurisprudence of the European Convention on Human Rights (the Convention).

7

5. Further and if necessary, a declaration that the definition of " child" in s.1 of the Act of 2002 is invalid having regard to the provisions of the Constitution of Ireland.

8

6. Further and in the alternative and if necessary, a declaration that s. 7(1) (b) of the Act of 2002 is invalid having regard to the provisions of the Constitution.

9

7. Further or in the alternative and if necessary, a declaration that s. 7(1) (b) of the Act of 2002 is incompatible with the second named respondent's obligations under the Convention.

Facts
10

The applicant entered St. Patrick's Mother and Baby Home, Navan Road, Dublin (the Home) in November, 1968. It is alleged that the applicant suffered ten or eleven years of abuse by two of her older brothers and became pregnant through incest at the age of seventeen. The applicant's eighteenth birthday occurred, eleven days before she entered the Home. The applicant's younger sister, who it is alleged was also abused by her two older brothers, also become pregnant through incest, and entered the Home on the same day as the applicant.

11

In December, 1968 the applicant gave birth to a son. After two to three months the applicant's son was taken from her and placed for adoption. The applicant left the Home in April, 1969.

12

By Order entitled the Residential Institutions Redress Act 2002 (Additional Institutions) Order 2004 dated 9 th November, 2004, the Minister for Education and Science amended the Schedule to the Act of 2002 by adding further institutions, including St. Patrick's Mother and Baby Home. In May, 2005 the applicant applied to Residential Institutions Redress Board (the Board) for redress in respect of the treatment she experienced during her time spent in the Home. The Registrar of the Board wrote to the applicant's solicitors informing them that it had refused the application of the applicant on the basis that she was not a child within the meaning of ss. 1(1) and 7(I) (b) of the Act of 2002 when she was placed in the Home. The applicant appealed this decision of the Board to the first named respondent. The applicant's solicitors made submissions in the appeal. The first named respondent affirmed the decision of the Board on 6 th October, 2006. In the decision, the Chairman of the first named respondent stated as follows:-

" The Act does not apply to or 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 whilst 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 who was not a child within the meaning of the Act at the time when he or she wasresident in the institution in question. Obviously, any cut off point in respect of the right to redress will involve some measure of hardship or concern but this is not an injustice or hardship which the Committee can address."

13

It is to be observed that having regard to the limits of the statutory jurisdiction conferred on the first named respondent this conclusion was unavoidable.

14

There is no factual dispute in this case concerning the applicant's account of the treatment she received whilst residing in the Home.

Issues
15

The first issue this Court must address is whether the applicant was discriminated against contrary to Article 40.1 of the Constitution, the right to be held equal before the law, in not being considered to be a child at the time she lived at the Home by virtue of the definition of " child" under the Act of 2002. The Court must consider whether the definition of " child" and cognate expressions contained in the Act of 2002 are unconstitutional as being a discrimination on the basis of age that is not relevant to or justified by any legitimate legislative purpose and as failing to reflect legal and social conditions of the 1960s, when persons under the age of twenty one were minors in law.

16

The second issue that falls for determination is whether the applicant's rights under Articles 8, 13 and 14 of the Convention, as incorporated into Irish law by the European Convention on Human Rights Act, 2003 (the Act of 2003), have been breached by the definition of " child" in the Act of 2002.

17

The order in which the Court will conduct the examination of the foregoing issues will be to consider the constitutional issue first.

The Act of 2002
18

The purpose of the Act of 2002 is set out in its preamble:-

" An Act to provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the...

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2 cases
  • Byrne v an Taoiseach and Others
    • Ireland
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    ...[2004] 2 IR 178, Magee v Farrell [2005] IEHC 388, (Unrep, Gilligan J, 26/10/2005), D v Residential Institutions Redress Review Committee [2008] IEHC 350, (Unrep, Ó Néill J, 11/11/2008) and O'Neill v An Taoiseach [2009] IEHC 119 (Unrep, Murphy J, 18/3/2009) considered - European Convention o......
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