JD -v- Residential Institutions Redress Committee ors
Supreme Court
Judgment delivered on July 27th, 2009, by Chief Justice Murray; Mrs Justice Denham, Mr Justices Hardiman, Geoghegan and Fennelly concurring.
Judgment
The choice of an age limit of 18 years for those seeking redress under the Residential Institutions Redress Act 2002 was a legitimate exercise of legislative power that was not incompatible with the Constitution.
Background
In November 2008, Justice Iarlaith O’Neill ruled that the definition of a “child” as under 18 years of age for the purposes of the Residential Institutions Redress Act 2002 was repugnant to the Constitution. He said JD, who had taken the case, could be construed as a minor under the law prevailing in 1968 and 1969 when she was resident in St Patrick’s Mother and Baby Home in Dublin, though she was already 18 when she entered the home.
JD entered St Patrick’s Mother and Baby Home, Navan Road, Dublin, in November, 1968. It was alleged that she had suffered 10 or 11 years of abuse by two of her older brothers, and became pregnant through incest aged 17.
She turned 18 years of age 11 days before she entered the home. Her younger sister entered the home on the same day under the same circumstances.
In December of that year, JD gave birth to a son who was placed for adoption three months later, and she left the home in April, 1969.
In November 2004, St Patrick’s was added to a list of institutions included under the Residential Institutions Redress Act 2002.
In May 2005, the applicant applied to the Residential Institutions Redress Board for compensation.
The board refused her application on the grounds that she was not a child within the meaning of the Act when she entered the home. She appealed the decision to the Residential Institutions Redress Committee, which also refused her application.
JD then brought the case to the High Court on the grounds she had been 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.
Judge O’Neill had accepted that the definition of a child under the Act did not reflect legal and social conditions of the 1960s; at the time, persons under the age of 21 were minors.
Decision
Mr Justice Murray said any person wishing to challenge the compatibility of a provision of an Act of the Oireachtas with the Constitution must overcome and rebut the fundamental principle of the presumption of constitutionality operating in favour of that Act.
“The applicant faced a high hurdle in seeking to persuade the High Court to exercise its constitutional power to declare that the impugned provision was repugnant to the Constitution,” he said.
He said JD’s case was founded solely and exclusively on the proposition that the definition of a child in the Act offended Article 40, Section 1 of the Constitution, under which citizens are “equal before the law”.
“However, almost all legislation addressed to the regulation of society resorts to some form of classification,” he said.
“Age is frequently used as a classification of inclusion or exclusion for multitudes of legislative purposes.”
He said the Act was “exclusively directed to redressing the injuries suffered by children”. He said the court was not satisfied that it was established that in 1968 the word “child” was understood as including any person under the age of 21.
The age of majority certainly included people who are children, but not everybody under the age of 21 would naturally have been described as a child, Mr Justice Murray said.
The Age of Majority Act 1985 reduced the age of majority from 21 to 18 but did not refer to “child” or “childhood”, he said.
“It follows from the conclusion that the age of majority is not the converse of childhood, that the premises of the respondent’s discrimination case fails,” he said.
He said the Oireachtas necessarily had to define the scope and limits of the redress scheme.
“The court is satisfied that the choice of an age limit of 18 constituted a legitimate legislative designation of the persons who naturally and normally have been described as children,” he said.
“The court is satisfied that the Act of 2002 . . . is not incompatible with the Constitution.”
The full text of this judgment is available on www.courts.ie
Maurice Collins SC and Douglas Clarke BL instructed by the Chief State Solicitor, for the appellant, the Residential Institutions Redress Board; James O’Reilly SC and Dr Oran Doyle BL, instructed by Rochford Gibbons Solicitors for the respondent