Age restrictions in Redress Act 'repugnant to the Constitution'
JD -v- The Residential Institutions Redress Review Committee, Ireland and Attorney General
Judgment was delivered by Mr Justice Iarfhlaith O’Neill on November 11th, 2008
The definition of a “child” as under 18 year of age for the purposes of the Residential Institutions Redress Act 2002 is repugnant to the Constitution.
The applicant may 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.
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. The applicant’s younger sister entered the home on the same day under the same circumstances.
In December, the applicant 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.
The applicant 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.
The definition of a child under the Act did not reflect legal and social conditions of the 1960s, her counsel argued. At the time, persons under the age of 21 were minors.
Counsel for the first respondent argued that the definition was not unconstitutional in that the discrimination was relevant to a legitimate legislative purpose. He also said if the court found it was unconstitutional, it was not open to the court to substitute the provision as this would amount to legislating.
Mr Justice O’Neill said that by its very nature, the setting of an age limit was discriminatory and so the burden of proof shifted to the State to justify the reason for the discrimination.
He said simply because the applicant’s sister was a year younger, she had a right to claim under the Act but the applicant did not.
“Both were minors in law at the time,” he said.
He said when St Patrick’s was added to the list of institutions covered by the Act, it could have been anticipated the age profile of residents would be different.
He said the Act of 2002 ignored the reality that the applicant was “to all intents and purposes a child whilst at the home” and was a minor in law in 1968 and 1969.
“It has not been demonstrated to the satisfaction of this court that the decision to limit the scheme of redress to persons under 18 years old had a legitimate legislative purpose,” he said.
“The understandable desire to clearly limit the extent of the scheme could not justify excluding from the scheme persons who enjoyed, in law, the status of children.”
He said he was satisfied the applicant had rebutted the presumption of constitutionality of the definition of child in the Act and he was satisfied that definition 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 definition was repugnant to the Constitution, he said, and he ordered it struck down. He said the meaning of “childhood” in the Act could now be ascertained from the law prevailing when the person was resident in the institution.
The full text of this judgment is available on www.courts.ie
James OReilly SC and Oran Doyle BL, instructed by Rochford Gibbons Solicitors for the applicant: David Barniville SC and Jim O’Callaghan BL (now SC), instructed by the Chief State Solicitor, for the Residential Institutions Redress Board