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

• Jurisdiction: Ireland
• Judgment Date: 27 July 2009
• Docket Number: [S.C. Nos.
• Date: 27 July 2009
• Court: High Court

J.D. v. Residential Institutions Redress Review Committee

J.D.

Applicant

and

The Residential Institutions Redress Review Committee, Ireland and The Attorney General

Respondents

[2009] IESC 59,

[S.C. Nos. 405 and 410 of 2008]

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 - Residential Institutions Redress Act 2002 (No. 13), ss. 1 and 7- Constitution of Ireland, Article 40.1.

Human rights - Private and family life - Prohibition on 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 'child' incompatible with Convention - European Convention on Human Rights Act 2003 (No. 20), s. 2 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 8 and 14.

The Residential Institutions Redress Act 2002 provides for the making of financial awards to assist in the recovery of persons who were abused while resident as children in certain institutions in the State. Section 1(1) of the Act of 2002 defines "child" as "a person who has not attained the age of 18 years" and stipulates that cognate words are to be construed accordingly.

Section 7(1) of the Act of 2002 provides:-

"Where a person who makes an application (an 'applicant') for an award to the Board establishes to the satisfaction of the Board -

(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident, "

the Board shall make an award to that person in accordance with section 13(1)."

The applicant, who had become pregnant through incest, entered an institution covered by the Act in November, 1968 at the age of eighteen. In December, 1968 she gave birth to a son who was subsequently taken from her and placed for adoption. By order entitled the Residential Institutions Redress Act 2002 (Additional Institutions) Order 2004, the institution in which the applicant had stayed was added to the list of institutions to which the Act of 2002 was to apply and in May, 2005 the applicant applied to the Board for redress in respect of the treatment she experienced during her time spent in that institution. Her application was refused by the Board on the basis that she was not a child within the meaning of ss. 1(1) and 7(1)(b) of the Act of 2002 at the time when she was resident in the institution. The decision of the Board was affirmed on appeal by the first respondent.

The applicant sought, inter alia, by way of judicial review proceedings an order of certiorari quashing the decision of the first respondent refusing her redress in respect of the treatment she experienced during her time in the institution on the basis that she was not a child within the meaning of the Act of 2002 when she experienced that treatment. The applicant also sought a declaration that the definition of "child" in s. 1(1) of the Act of 2002 was unconstitutional. The applicant submitted that, since "child" in 1968 meant any person under the age of 21 years, the definition in s. 1(1) of "child" as "a person who has not attained the age of 18 years" discriminated against children between 18 and 21 years.

The application for judicial review was heard by the High Court (O Néill J.) (see [2008] IEHC 350) and orders were made quashing the decision of the first respondent and declaring the definition of "child" in s. 1(1) of the Act of 2002 was unconstitutional. The High Court concluded that the definition of "child" in s. 1(1) of the Act of 2002 worked an invidious discrimination against the applicant and violated her right under Article 40.1 of the Constitution to be held equal before the law. The respondents appealed the orders to the Supreme Court, submitting, inter alia, that the impugned legislation enjoyed a presumption of constitutionality and that a legislative classification by reference to age did not, in itself, raise any presumption of discrimination.

By order of the High Court (Peart J.) the applicant was also granted leave to apply for a declaration that the definition of "child" in the Act of 2002 was incompatible with the obligations of the State under the European Convention on Human Rights 1950. The High Court (O Néill J.) refused to grant the declaration sought holding that the applicant could not rely on a breach of her rights under the Convention in respect of events that had occurred before the enactment of the European Convention on Human Rights Act 2003. The applicant cross-appealed against the decision of the High Court insofar as it rejected the application for a declaration of incompatibility.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan and Fennelly JJ.), in allowing the appeal and dismissing the cross-appeal, 1, that, in designating persons under the age of eighteen as the beneficiaries of the scheme of redress for abused children, the Act of 2002 represented a legitimate exercise of legislative power and was not incompatible with the Constitution.

2. That it was a matter for the applicant to demonstrate aprima facie basis for the claim that the classification was discriminatory.

Brennan v. Attorney General [1983] I.L.R.M. 449;The Employment Equality Bill, 1996 [1997] 2 1.R. 321 andThe Planning and Development Bill, 1999[2000] 2 I.R. 321considered.

3. That childhood was not coterminous with minority and, as it was not established that at the relevant time, 1968, the word "child" was understood as including any person under the age of 21, the premise of the applicant's discrimination case failed.

4. That the Oireachtas necessarily had to define the scope and limits of the redress scheme and the choice of an age limit of eighteen constituted a legitimate legislative designation of the persons who naturally and normally had been described as children. The definition of "child" as a person under the age of eighteen years represented an objective classification and was neither arbitrary nor discriminatory.

5. That the provisions of the European Convention on Human Rights Act 2003 did not have the effect of retrospectively applying the provisions of the Convention to abuse that occurred prior to its entry into force.

Dublin City Council v. Fennell [2005] IESC 33,[2005] 1 I.R. 604 followed.

6. That, by the voluntary enactment of a scheme of redress for abuse, the State was giving effect to a policy decision to compensate victims of institutional abuse and was not indirectly attracting to itself obligations under the European Convention on Human Rights derived from past acts committed by other persons. The enactment of the Act of 2002 establishing the redress scheme, combined with the decision of the Minister in 2004 to add the institution in which the applicant had stayed to the list of institutions to which the Act was to apply and the decision of the Review Committee in 2006 refusing the applicant redress, did not therefore have the effect of engaging the responsibility of the State by reference to the Convention.

Abdulaziz v. United Kingdom (1985) 7 E.H.R.R. 471 and Von Hannover v. Germany (2004) 40 E.H.R.R. 1 considered.

7. That the definition of "child" in s. 1 of the Act of 2002 was not incompatible with the obligations of the State pursuant to the European Convention on Human Rights.

X and Y v. The Netherlands (1985) 8 E.H.R.R. 235 andSidabras v. Lithuania (2004) 42 E.H.R.R. 104 considered.

Cases mentioned in this report:-

Abdulaziz v. United Kingdom (1985) 7 E.H.R.R. 471.

Brennan v. Attorney General [1983] I.L.R.M. 449.

Buckley and Others (Sinn Féin) v. Attorney General and Another[1950] I.R. 67.

Dublin City Council v. Fennell [2005] IESC 33, [2005] 1 I.R. 604; [2005] 2 I.L.R.M. 288.

The Employment Equality Bill, 1996 [1997] 2 1.R. 321.

D.H. v. Czech Republic (2007) 47 E.H.R.R. 59.

Pigs Marketing Board v. Donnelly (Dublin) Ltd.[1939] I.R. 413.

The Planning and Development Bill, 1999 [2000] 2 I.R. 321; [2001] 1 I.L.R.M. 81.

Sidabras v. Lithuania (2004) 42 E.H.R.R. 104.

Von Hannover v. Germany (2004) 40 E.H.R.R. 1.

X and Y v. The Netherlands (1985) 8 E.H.R.R. 235.

Appeal from the High Court

The facts have been summarised in the headnote and are more fully set out in the judgments of Murray C.J. and Fennelly J.,infra.

By order of the High Court (Peart J.), dated the 20th, November 2006, the applicant was granted leave to apply by way of judicial review for, inter alia, an order of certiorariquashing the decision of the first respondent dated the 6th October, 2006, refusing the applicant redress in respect of the treatment she experienced during her time in a residential institution on the basis that she was not a child within the meaning of ss. 1(1) and 7(1)(b) of the Act of 2002 when she experienced that treatment.

The application was heard by the High Court (O Néill J.) on the 19th and 20th June, 2008 (see [2008] IEHC 350) and orders were made quashing the decision of the first respondent and declaring the definition of "child" in s. 1(1) of the Act of 2002 unconstitutional. The High Court refused to grant a declaration that the definition of "child" in the Act of 2002 was incompatible with the obligations of the State under the European Convention on Human Rights.

The respondents, by notice of appeal dated the 11th December, 2008, appealed against the judgment and orders of the High Court (O Néill J.) given on the 11th November, 2008, and perfected on the 2nd December, 2008. The applicant, by notice of appeal dated the 11th December 2008, cross-appealed against so much of the...