Leinster v Minister for Children, Equality, Disability, Integration and Youth
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 11 October 2022 |
| Neutral Citation | [2022] IEHC 609 |
| Court | High Court |
| Docket Number | [Record No. 2021 5611 P] |
In the Matter of the Constitution of Ireland and The European Convention of Human Rights Act 2003
[2022] IEHC 609
[Record No. 2021 5611 P]
THE HIGH COURT
Judgment of Mr. Justice Dignam delivered on the 11 th day of October 2022 .
This matter comes before the Court by way of two motions: a motion for discovery brought by the plaintiff and a motion brought by the defendants seeking an order directing the trial of a preliminary issue as to whether an element of the plaintiff's claim is time-barred.
The plaintiff's motion for discovery was brought first in time (the motion was issued on the 28 th April 2022). Indeed, the plaintiff is of the view that the defendants' motion seeking the trial of a preliminary issue was a response to that discovery motion. The defendants' motion was issued on the 30 th May 2022.
The starting point is that the plaintiff's motion for discovery, having been issued first, should be determined first. However, this does not seem to be an efficient way to deal with matters in circumstances where the defendants' position is that if the Court directs the trial of the preliminary issue (i) discovery should be put on hold pending determination of that issue and (ii) if the Court holds with the defendants in respect of the substance of that preliminary issue then the discovery which is sought by the plaintiff will not be relevant or necessary. I express no view on whether this is correct or not this at this stage because it is discussed in further detail below but for present purposes it seems to me that where this is a central part of the defendants' case it makes more sense to determine the defendants' motion first. If they are correct in relation to discovery there would be little point in my first determining the motion for discovery and then directing that a preliminary issue should be tried where the ultimate effect of that may be to narrow the scope of the case and therefore, possibly, the discovery that is required.
I will therefore consider the defendants' motion first. Of course, the two motions can not be treated as entirely separate from each other in circumstances where the burden of having to make discovery is part of the defendants' case in relation to their motion.
In order to place the two motions in context it may be helpful to set out the background. I draw the following summary from the Statement of Claim. The defendants have delivered a very comprehensive Defence and if the case were to proceed to trial there are likely to be substantial disputes and conflicts on the facts. I do not have to resolve any issues of fact at this stage – indeed, the defendants have accepted (as they must do) for the purpose of their motion that the facts pleaded by the plaintiff are true and correct. In those circumstances, I can base this summary on the Statement of Claim as though uncontested.
The plaintiff was born in July 1941 so is 81 years of age. He was born in Bethany Home, Rathgar, in Dublin. Bethany Home is described in the Statement of Claim as having been “ founded in or about May 1922 as a place of residence for unmarried Protestant women and their children” and as a “ Mother and Baby Institution and…a children's home and a place of detention for Protestant women and children.”
The plaintiff's mother left Bethany Home when he was seven and half months old and he was placed with a foster family, an arrangement which is referred to in the Statement of Claim as him being “nursed out/boarded”. This placement lasted until the plaintiff was approximately two and half years of age when he was returned to Bethany Home. Some months later he became ill with a number of conditions and was admitted to hospital for four and a half months and was then returned to Bethany Home. At age three years and ten months the plaintiff was “adopted” informally by a family with whom he remained until the age of 15. He alleges that during his time with this family he was subjected to physical abuse, sexual violence and emotional neglect.
The plaintiff claims the defendants owed a common law, statutory and constitutional duty of care to him to take reasonable steps and precautions to prevent him from being exposed to ongoing and enduring physical, sexual and emotional abuse as a vulnerable minor in the State care system which included Bethany Home and that those duties were breached by the defendants.
Under the Residential Institutions Redress Act 2002 (“the 2002 Act”) the Residential Institutions Redress Scheme (“the Scheme”) was established. That scheme was available to individuals who could demonstrate that they were resident during their childhood in one of the institutions listed in the Schedule to the 2002 Act. The Act allowed further institutions to be added to that Schedule by way of statutory instrument and seventeen further institutions were added by statutory instruments in 2004–2005. Bethany Home was not included in the original Schedule and was not one of the institutions added by statutory instrument in 2004–2005. Section 1 of the 2002 Act fixed the 17 th September 2011 as being the last date upon which an application for redress could be made to the Redress Board established by the 2002 Act so even if further institutions were added applications from former residents had to be made on or before the 17 th September 2011.
On the 20 th February 2015 the Commission of Investigation into Mother and Baby Homes and Related Matters was established by SI 57/2015. This Commission was tasked under its terms of reference with investigating various circumstances surrounding the operation of fourteen institutions, described as “Mother and Baby Homes”, listed at Appendix 1 to SI 57/2015. Bethany Home was listed as one of the fourteen institutions in Appendix 1. In September 2016 the Commission submitted its Second Interim Report and made a number of comments relevant to the non-inclusion of Bethany Home in the Scheme under the 2002 Act. These included querying why various Mother and Baby Homes and County Homes which were under investigation by the Commission, including Bethany Home, had been excluded from the Scheme, stating that the explanation given by the Department of Education and Skills to the Commission as to why requests to include some Mother and Baby Homes were refused may have been provided without full information being available to the Department, that the exclusion from the Scheme of various named Mother and Baby Homes and County Homes from the Scheme should be re-examined by the first-named defendant, that former Bethany Home residents had a strong case for inclusion in the Residential Institutions Redress Scheme, and that while the Redress Board had almost completed its work, it would be possible for the Oireachtas to enact legislation to allow the Board to hear further applications or that the Government would consider other redress options.
On the 28 th February 2021 the Commission of Investigation was dissolved pursuant to section 7(1) of the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records and Another Matter Act 2020. Prior its dissolution, in its Final Report, the Commission acknowledged that any decision on financial redress was a matter for government but concluded that children resident in Mother and Baby Institutions, such as Bethany Home, without their mothers had a strong case for being considered for redress.
There followed a public consultation on the development of a Restorative Recognition Scheme for former residents of Mother and Baby Homes and County Homes. That consultation process closed on the 31 st March 2021. It was indicated by the first-named defendant that a Mother and Baby Home Redress Scheme would not open until 2022. It is pleaded in the Statement of Claim that no redress scheme has been published and no indicative date has been provided as to when survivors could expect to receive payments under such a scheme. It is not admitted in the Defence that a scheme has not been published and it is pleaded on behalf of the defendants that the first-named defendant published the details of the scheme and it was approved by the Government on the 16 th November 2021.
It was in that context that the plaintiff issued these proceedings. The Plenary Summons was issued on the 30 th September 2021 and the Statement of Claim was delivered on the 6 th October 2021. The defendants delivered their Defence on the 4 th February 2022. The plaintiff sought voluntary discovery by letter dated the 9 th March 2022 and issued the motion for discovery on the 28 th April 2022. The defendants issued their motion on the 30 th May 2022.
In summary, the plaintiff's claim includes that the defendants have a duty to the plaintiff to provide an effective remedy in respect of the abuse suffered by him in the course of his childhood arising from this residence in Bethany Home, the defendants have failed to provide such an effective remedy by failing to include Bethany Home under the Scheme or in another scheme, and include Bethany Home in the Scheme and to include it in a subsequent scheme is unlawful, arbitrary and discriminatory with reference to the plaintiff's rights under Articles 40.1, 40.3 and 44 of the Constitution. It will be necessary to examine the Statement of Claim in greater detail due to the basis for the application by the defendants.
The Order that is sought by the defendants is:
“1. An Order pursuant to Order 25 rule 1 directing the trial of a preliminary issue as to whether the Plaintiff's claim in respect of the exclusion of the Bethany Home from the Residential Institutions Redress Scheme...
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