MB v The Commission to Inquire into Child Abuse, Respondent and The Residential Institutions Redress Board

JurisdictionIreland
JudgeO'Neill J.
Judgment Date07 November 2007
Neutral Citation[2007] IEHC 376
CourtHigh Court
Docket Number[2006 No. 1472 JR
Date07 November 2007

[2007] IEHC 376

THE HIGH COURT

[No. 1472 J.R./2006]
B (M) v Commission to Inquire into Child Abuse
JUDICIAL REVIEW

BETWEEN

M.B
APPLICANT

AND

THE COMMISSION TO INQUIRE INTO CHILD ABUSE
RESPONDENT

AND

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD
NOTICE PARTY

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S26(a)

COMMISSION TO INQUIRE INTO CHILD ABUSE (AMDT) ACT 2005 S19

COMMISSION TO INQUIRE INTO CHILD ABUSE (AMDT) ACT 2005 S19(3)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S10(4)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S10(5)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S25

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27(1)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27(2)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S15

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27(3)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27(6)

CULLY v NORTHERN BANK FINANCE CO 1984 ILRM 683

CENTRAL BANK ACT 1942 S31

O'BRIEN v IRELAND, AG & MIN DEFENCE 1995 1 IR 568

DEFENCE ACT 1954

DEFENCE FORCES (PENSIONS)(AMDT) SCHEME 1982 SI 137/1982

DEFENCE FORCES (PENSIONS)(AMDT)(NO 2) SCHEME 1982 SI 229/1982

DEFENCE FORCES (PENSIONS)(AMDT)(NO 3) SCHEME 1982 SI 247/1982

DEFENCE FORCES (PENSIONS)(AMDT)(NO 4) SCHEME 1982 SI 337/1982

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 58/1955

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S12

SKEFFINGTON v ROONEY 1997 1 IR 22, 1997 2 ILRM 56

EUROPEAN COMMISSION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

TRIBUNALS

Compensation

Residential institutional abuse - Disclosure - Evidence provided by applicant's late husband to confidential committee of defendant - Application for compensation to Residential Institutions Redress Board - Evidence sought by applicant as proof of abuse - Refusal by defendant to make evidence available - Judicial review - Whether absolute obligation of confidentiality - Function of confidential committee - Protection of interests of persons making allegations - Protection of persons against whom allegations made - Inapplicability of exceptions provided - Whether disclosure criminal offence - Whether possible for court to sanction conduct otherwise criminal offence - Whether breach of rights under European Convention on Human Rights - Whether inability to obtain proof amounts to denial of access to justice - Cully v Northern Bank Finance Corporation Ltd [1984] ILRM 683; O'Brien v Ireland [1995] 1 IR 568 and Skeffington v Rooney [1997] 1 IR 22 considered - Commission to Inquire into Child Abuse Act 2000 (No 7) ss 6, 15 and 27 - Relief refused (2006/1472JR - O'Neill J - 7/11/2007) [2007] IEHC 376

B(M) v Commission to Inquire into Child Abuse

1

JUDGMENT of O'Neill J. delivered on the 7th day of November 2007

2

In this application the applicant seeks leave pursuant to s. 26(a) of the Commission to Inquire into Child Abuse Act, 2002 as inserted by s. 19 of the Commission to Inquire into Child Abuse (Amendment) Act, 2005, to seek by way of judicial review an order of certiorari quashing the decision of the respondent communicated by letter of the 21st February, 2006 to refuse to make available to the applicant or to the notice party any records in the possession of the notice party of evidence given by the applicant's late husband J.B. to the confidential committee of the respondents.

3

In addition as this application was brought later than two months from the date of the decision challenged, the applicant seeks an order pursuant to s. 19(3) of the Commission to Inquire into Child Abuse (Amendment) Act, 2005, extending the period of two months for the purpose of bringing this application.

4

The background to this matter is as follows.

5

The applicant's late husband J.B. was born in 1935. The applicant and her late husband were married in 1973 and J.B. died on the 14th July, 2005. The late J.B. was a native of Ireland but emigrated to the United Kingdom in the early 1950s and lived and worked there until the end of his life.

6

In or about the month of June 2001, the applicant became aware through material he discovered in his local library of the existence and function of the respondent. At that time the late Mr. B. disclosed to the applicant that he had suffered abuse while in a residential institution in Ireland between 1945 and 1951. The late Mr. B. corresponded with the respondents and arrangements were made for him to give evidence to the respondent. The applicant and the late Mr. B. travelled over to Dublin in early December 2001 and stayed in a hotel in Dublin for two nights. He attended before the Confidential Committee of the respondents and gave his evidence.

7

The late Mr. B. did not at that stage, or at any stage, disclose to the applicant any detail whatever of the abuse suffered. Neither did he furnish any detail of this to any professionals, such as a solicitor who appeared to have acted for him in 2001. The late Mr. B. never attended any psychiatrists or counsellors. The applicant avers that at all times from June 2001 onwards, the late Mr. B. believed that his approach and application to the respondents would result in an award of compensation to him. She avers he was not aware of the existence of the notice party or of the separate functions of the respondent and the notice party. She avers that when the applicant came to Dublin in December 2001 and was met by an officer of the respondents and escorted from his hotel to the respondent's offices and back, that he was assured that there would be an award of compensation to him. After the giving of his evidence to the Confidential Committee, the applicant avers that the late Mr. B. continued to await an award of compensation and as time went on he remarked occasionally on the delay in receiving his award. The applicant avers that the late Mr. B. firmly believed that he had nothing further to do and no further application to make, beyond that which he had made to the respondents, in order to obtain the compensation. As his health declined and as he neared death, she avers that he express the wish that she would receive the compensation to be awarded to him.

8

Following the death of Mr. B., the applicant set about pursuing the matter of compensation. In due course, she instructed a solicitor and learned that a separate application had to be made to the notice party. This application was made on her own behalf as a person entitled pursuant to s. 9 of the Residential Institution Redress Act, 2002. As a result of diligent inquiries carried out on her behalf by her solicitor it became apparent that no record whatever existed of the abuse suffered by Mr. B., except the record of the evidence given by him to the Confidential Committee of the respondents. When this became apparent, the applicant's solicitor corresponded with the respondents seeking to obtain from them the record of his evidence or alternatively that this record would be sent directly to the notice parties on a confidential basis.

9

This record in the possession of the respondents of the evidence given by Mr. B. is of critical importance to the applicant's application for compensation because notwithstanding the fact that that record would be inadmissible evidence in a court, pursuant to s. 10(4) and (5) of the Residential Institutions Redress Act, 2002, this record would be sufficient proof of the abuse suffered by the late Mr. B, for the purposes of obtaining an award of compensation.

10

Having considered the applicant's request, the respondent in a letter of the 21st February, 2006 refused that request in the following terms:-

"Re: Mr. J.B. (Deceased).

Dear Sirs,

I refer to your letter dated 9th February, 2006 with enclosures.

It is clear from the attached documentation that Mr. B. opted to give evidence before the confidential committee which operates completely separately from the investigation committee.

The confidential committee is prohibited by the provisions of s. 27 of the Commission to Inquire into Child Abuse Act 2000, from disclosing information provided to it in the course of the performance of its functions under this Act. I am therefore not in a position to assist with your request. ..."

11

This letter of the 21st February, 2006 was replied to by letter of 24th February, 2006 from the solicitors for the applicant in which they raised the question of applying to the High Court for directions pursuant to s. 25 of the Commission to Inquire into Child Abuse Act, 2000. The respondents replied by letter of 1st March, 2006 in which they say the following:-

"I reiterate the contents of my letter dated 21st February, 2006. This is not a case of a lack of cooperation between the Commission and the Redress Board. The Commission is...

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