Ruling later on appeal against abuse law declaration

A GIRL who had just turned 18 in 1968 when sent to a mother and baby home, allegedly pregnant by an older brother after years of abuse, is entitled to be regarded as a child for the purpose of securing redress for further abuse in that home, it has been argued before the Supreme Court.

The law in 1968 provided that persons under 21 be regarded as children and the girl was sent to the St Patrick’s Mother and Baby Home, Navan Road, Dublin, by her mother, her “sole functioning parent”, and had to go, James O’Reilly SC argued.

The case of the girl, who claims she was physically abused at the home with her baby, also removed from her for adoption, must be seen against the social mores of the time, he urged.

The court has heard the girl and her then 15-year-old sister, both allegedly pregnant by a brother after some 10/11 years of abuse in the family home, were admitted to the home on the same day. Both claimed they suffered abuse there but while the younger sister has secured redress, the older was refused as the scheme is limited to those under 18.

Mr O’Reilly was making submissions on behalf of the woman, now in her late 50s, opposing an appeal by the State against a High Court decision granting a declaration that the 2002 law restricting redress for abuse in residential institutions to children under 18 is unconstitutional.

The appeal concluded yesterday before the five-judge court which reserved judgment.

In the High Court last October, Mr Justice Iarfhlaith O’Neill declared the relevant provisions of the Residential Institutions Redress Act, 2002, both unconstitutional and “unjustifiable discrimination” on grounds of age as the abuse occurred when persons under 21 were regarded in law as children.

Section 1.1 of the 2002 Act defines a “child” as a person under 18 and section 7 of the Act provides redress may only be paid to a child. Mr Justice O’Neill ruled the definition of “child” as a person under 18 years and cognate words including childhood in section 1.1 is unconstitutional.

The Act’s defintion of a child as a person under 18 meant the woman was discriminated against contrary to Article 40.1 of the Constitution. His decision means persons abused in residential institutions up to the age of 21 could seek redress but it is believed only a small number of persons are affected.

Earlier, Maurice Collins SC, for the State, argued the effect of the High Court decision, if upheld, would be to render the 2002 Act inoperable.

He submitted the High Court was wrong in concluding the redress provisions in section 7 could function without the definition of child in section 1.1.

There were both mothers and babies in the home and, in adding this home to the list of institutions covered by the redress scheme, it was not to be imputed the intention of the Oireachtas was to include mothers over 18, he said.

When the woman was in the home, some 35/40 other girls were also there from age 12 upwards.