Judge rules that age restrictions in redress Act are unconstitutional

PEOPLE WHO were abused in residential institutions up to the age of 21 will be entitled to seek redress, under a ruling from the High Court.

A High Court judge has ruled that the provision in the 2002 law restricting redress for abuse in residential institutions to children under 18 is unconstitutional and an "unjustifiable discrimination" on grounds of age as the abuse occurred when persons under 21 were regarded in law as children.

The challenge to provisions of the Residential Institutions Redress Act 2002 was brought by a woman who had 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 mother and baby home, where she remained until 1969, but was deemed not to be entitled to redress as she was over 18 at the time of the abuse. Her baby 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 Residential Institutions Redress Act 2002 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 Iarfhlaith O'Neill ruled yesterday that the definition of "child" as a person under 18 years and cognate words, including childhood in section 1.1, is unconstitutional.

He upheld arguments by James O'Reilly SC, for the woman, that the 2002 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 - in that she was not being considered to be a child at the time she lived in the mother and baby home.

He also ruled the discrimination was not relevant to or justified by any legitimate legislative purpose and failed to reflect legal and social conditions of the 1960s when persons under 21 were minors in law.

He said the State's "understandable desire" to clearly limit the extent of the redress scheme by introducing an age limit could not justify excluding from the scheme persons who enjoyed in law the status of children during the time they were resident in a residential institution.

Such an exclusion appeared to "fly in the face" of the preamble to the 2002 Act stating the Act was "to provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the State and who have or have had injuries consistent with abuse received while so resident".

He also noted the discrimination encountered by the woman was well illustrated in the stark contrast between her situation and that of her sister. They had entered the institution on the same day, their experiences were exactly similar but because the sister was a year younger, she secured redress.

When the 2002 Act was enacted, it was also reasonable to infer that institutions like this mother and baby home would be brought into the scheme and the definition of "child" would have included all those who were children in law at the relevant time, the judge added.

The 2002 Act ignored the reality that the applicant was to all intents and purposes a child when at the home and also believed she was treated as such.

Because it was not possible to construe the definition of "child" in section 1.1 of the 2002 Act in a manner harmonious with the Constitution, he must declare it repugnant to the Constitution.

The judge also rejected the State's arguments that striking down section 1.1 as unconstitutional would mean redress could not be paid. He ruled the redress provisions in section 7 of the Act can function without the definition of child in section 1.1.

The meaning of "childhood" could be construed to mean a person who was a minor in law under the law prevailing when they were residing in a relevant institution and, in this case, that would mean a person under 21, he said.

Dismissing the woman's additional claim that section 1.1 also breached the European Convention on Human Rights Act 2003, the judge said the 2003 Act was not retrospective and the woman could not rely on a breach by the State of rights under the convention in respect of events occurring before the Act came into force.