Abuse Redress scheme limited to children under 18

THE SUPREME Court has overturned a High Court decision that the 2002 law restricting redress for abuse in residential institutions to children under 18 is unconstitutional.

The High Court finding in favour of arguments by a female abuse victim would have meant persons who were abused in residential institutions up to the age of 21 could seek redress.
However, the age limit of 18 now stands after the five judge Supreme Court yesterday unanimously granted an appeal by the Residential Institutions Redress Review Committee and the State against that finding.
The Supreme Court dismissed the woman’s cross appeal against the High Court’s rejection of her additional argument that the definition of child in the 2002 Residential Institutions Redress Act as a person under 18 breached the State’s obligations under the European Convention on Human Rights Act 2003.
The woman had just turned 18 days before she was admitted to St Patrick’s Mother and Baby Home on the Navan Road, Dublin, in 1968 after becoming pregnant allegedly by an older brother. She suffered abuse at the home, where she remained until 1969, but was not entitled to redress as she was over 18 at the time of the abuse.
Her baby son was taken from her and placed for adoption.

Her younger sister, also pregnant allegedly by an older brother, was admitted to the same home on the same day and ultimately secured redress for abuse suffered there because she was under 18. Both girls alleged they had been abused in the family home for 10 or 11 years by their two older brothers.
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.

In the High Court, Mr Justice Iarfhlaith O’Neill ruled the Act’s definition of child as a person under 18 meant the woman was discriminated against contrary to Article 40.1 of the Constitution, the right to be held equal before the law, as she was not being considered to be a child at the time she lived in the mother and baby home.

The discrimination failed to reflect legal and social conditions of the 1960s when persons under 21 were minors in law, he held.

Giving the Supreme Court judgment on the constitutional arguments, Chief Justice Mr Justice John Murray stressed the court was not addressing the substance or merits of the woman’s claim for redress but the fact she was excluded from having her claim considered because of her age at the relevant times.

The fact she had applied for redress did not involve her waiving any other claim, he added.
Section 7 of the 2002 Act must be presumed constitutional and the woman faced a high hurdle in displacing that presumption, the Chief Justice said. Her challenge to Section 7 related to the age of 18, rather than 21, being chosen by the legislature.

Almost all legislation addressed to the regulation of society resorted to some form of classification and there was nothing in such classification, taken on its own, to suggest it was invidious, unfair, or, in the legal sense, discriminatory, he found.

The woman had failed to establish that, in 1968, the word “child” was understood to include any person under 21, he added. Not everybody under 21 would naturally have been described as a “child” and the age of majority was not the converse of childhood.

In deciding to establish a redress scheme, the Oireachtas necessarily had to define its scope and the choice of an age limit of 18 was a legitimate legislative designation of persons who naturally and normally have been described as “children”, he added. The definition of child as under 18 was an “objective classification” containing no element of discrimination and was neither arbitrary nor irrational.

In a separate judgment on the issues raised under the ECHR Act 2003, Mr Justice Nial Fennelly rejected arguments the definition of child in the 2002 Act breached the State’s obligations under the 2003 Act to protect the woman’s rights under Article 8 (to respect for private and family life) and Article 14 (preventing discrimination).

There was a clear distinction between the State’s obligation by its laws to protect Convention rights and the voluntary enactment by the State of a scheme of redress for abuse suffered in the past, he also held.

The woman had not established the defining of a child as under 18 in the 2002 Act constituted discrimination contrary to Article 14 of the ECHR.