The Prism of Statutory Interpretation: The Statutory Compensation Scheme for Institutional Abuse in JGH v Residential Institutions Review Committee [2017] IESC 69

Date01 January 2018
e Prism of Statutory Interpretation: e
Statutory Compensation Scheme for Institutional
Abuse in JGH v Residential Institutions Review
Committee [2017] IESC 69
In JGH v Residential Institutions Review Committee,1 the Supreme Court
considered issues of abuse in residential institutions through the prism of statutory
interpretation. e Supreme Court considered whether the provisions of the
Residential Institutions Act 2002 (hereinaer the ‘2002 Act’) were such that
the act of transfer from a scheduled to a non-scheduled institution under the
Act constituted abuse within the scope of the 2002 Act. e Supreme Court
further considered whether the Residential Institutions Redress Board or Review
Committee in making their determinations of compensation should consider
subsequent abuse, which took place in a non-scheduled institution. Finally, the
Supreme Court also considered whether it would be appropriate for the Residential
Institutions Review Committee (hereinaer the ‘Review Committee’) to apply
common law principles, such as foreseeability, in reaching a determination of
compensation under the 2002 Act.
Clarke CJ delivered the judgment for the majority and O’Donnell J delivered a
dissenting judgment. rough these judgments, it is argued, the Supreme Court has
highlighted the inherent tension between legal concepts and legislative initiatives
in the form of compensatory schemes, such as the Residential Institutions Redress
Board (hereinaer the ‘Redress Board’). e decision in this case is the latest
development in this part of Irish history. As O’Donnell J remarked that not only
did this case involve ‘a point of law of general public importance, and here an
important question of statutory interpretation …,2 but that the circumstances of
the case also provided ‘a compelling and tragic story and represents a salutary piece
of medical and social history’.3 Most importantly, this case highlighted, amongst
other things, the basic and fundamental concept of the separation of powers and
* B.A., LL.M. e author would like to thank the two anonymous academic reviewers and the
Editorial Board for their helpful and valuable comments which have contributed to the nal version
of this case note.
2 JGH (n 1) (SC) [66] (O’Donnell J).
3 JGH (n 1) (SC) [45] (O’Donnell J).
e Statutory Compensation Scheme for Institutional Abuse 109
statutory interpretation, and their links to concepts of and attempts to achieve
is case note provides an overview of the background of residential institutions in
Ireland, the factual context underpinning JGH before turning to an analysis of the
diering approaches in the Supreme Court judgments.
Following the famine in Ireland, from 1845–1849, workhouses were established
to combat the rising numbers of poor, orphaned and/or destitute children and
young adults.4 By 1853, 77,000 children below een years of age were living in
workhouses.5 At the same time, voluntary eorts were raised to combat these rising
numbers. ese eorts included orphanages and charitable schools.6 However,
the problem persisted, and industrial schools were proposed as a solution, having
already been deemed successful in Germany, Switzerland and Scandinavia.7 e
basis for the education in these schools was practical training with the hopes of
equipping children with skills for employment and education.8
e Reformatory Schools (Ireland) Act 1858 and the Industrial Schools (Ireland)
Act 1868 governed part of the education framework at this time.9 Reformatories
were designed to enrol children guilty of oences, while industrial schools were
designed to enrol neglected, abandoned or orphaned children.10 e already
established organisations applied for certication as either reformatories or
industrial schools that would take in children assigned to them by the court and
gain funding and grants for doing so.11 By 1875, there were y industrial schools in
Ireland and in 1898 the population of industrial schools reached 7,998 children.12
Eventually, the Children Act 1908 replaced the 1858 and 1868 Acts.
Barnes observes that industrial schools sought to achieve two goals: ‘to provide
skills and training to enable children to become self-sucient in later life, capable
of supporting themselves by honest labour’, and ‘to mould the characters of children
committed to the schools, ensuring that they became decent, law-abiding citizens,
free from criminal associations or impulses’.13 In order to achieve these goals, the
4 Commission to Inquire into Child Abuse, Report of the Commission to Inquire into Child Abuse
(Volume 1, 20 May 2009) 35.
5 ibid.
6 ibid.
7 ibid 36.
8 ibid.
9 ibid.
10 ibid.
11 ibid.
12 ibid 36–37.
13 Jane Barnes, Irish Industrial Schools, 1868–1908 (Irish Academic Press 1989) 88.

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