Supreme Court allows appeal, upholding the age of 18 definition of 'child' in the Residential Institutions Redress Act as constitutional.

THE SUPREME COURT

405/08; and 410/08

Murray CJ.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

J.D.

APPLICANT / RESPONDENT

AND

RESIDENTIAL INSITUTIONS REDRESS REVIEW COMMITTEE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS / APPELLANTS

JUDGMENT of the Court delivered by Murray C.J. on the 27th day of July, 2009

By his judgment dated 10th November 2008, O’Neill J, held that the definition of “child” in section 1 of the Residential

Institutions Redress Act, 2002 ("the Act of 2002") was invalid having regard to the provisions of the Constitution. The

above-named applicant/ respondent’s application for an award before the Residential Institutions Redress Board ("the

Board") had been rejected because she had narrowly failed to satisfy that definition. The respondents have appealed against

the order of the High Court made 2nd December 2008 pursuant to the judgment of O’Neill J.

The broad purpose of the Act of 2002 is to provide compensation for persons who, during childhood, suffered abuse in

residential institutions in the State. The respondent was born on 31st October 1950. She claimed that she had been sexually

abused by her brothers at home and had become pregnant. She was placed by her mother in St Patrick’s Mother and Baby

Home, Navan Road, Dublin (hereinafter “the Home”) in November 1968. Her 18th birthday occurred 11 days before she

entered the Home. On 31st December 1968 she gave birth to a son. Her son was taken from her and placed for adoption.

She left the Home in April 1969. The respondent's younger sister, who also alleged that she had been abused by her

brothers, and that she had become pregnant as a result, entered the Home on the same day. She, however, was then under

the age of 18.

On 5th May 2005, the respondent applied in writing to the Board for redress in relation to her treatment at the Home. On

6th July 2005 the registrar of the Board informed the respondent's solicitors that her application was being refused on the

ground that she had not been a child within the meaning of section 1 (1) of the Act of 2002 when she was placed in the

Home. Her solicitor appealed to the Residential Institutions Redress Review Committee, which is the first named appellant.

On 6th October 2006, the first named appellant affirmed the decision. The reasons provided by the Review Committee in its

written decision included the following:

"The act does not apply to exclude any person by reference to their status as a minor or an adult. The

legislation confers a particular remedy on persons who at a particular age, clearly specified in the legislation,

were abused while a resident in certain identified institutions. There is no ambiguity as to the age limits

identified by the legislature. There is no room or need to invoke any special canon of interpretation. Neither

the Board nor this Committee could award redress to a person who was not a child within the meaning of the

Act at the time when he or she was resident in the institution in question. Obviously, any cut-off point in

respect of the right to redress will involve some measure of hardship or concern but this is not an injustice or

hardship which the Committee can address."

By order dated 20th November 2006 the High Court (Peart J) granted leave to the respondent to apply for judicial review

with the object of quashing the decision of the first-named appellant. The first ground upon which the respondent sought

judicial review was that the definition of child contained in the Act of 2002 was contrary to the Constitution. She claimed:

“Article 40.1 of the Constitution guarantees that all citizens shall, as human persons, be held equal before the

law. The decision of the first named [appellant] discriminates against the applicant on the grounds of her age.

It is relevant to no legitimate legislative purpose. The purpose of the Act is stated to be to provide redress to

persons who, as children, lived in certain residential institutions. At the time of her entry into the Home, the

applicant had not reached the age of majority. The first named [appellant] in its decision unconstitutionally

interpreted sections 1 and 7 of the Act in such a way as to exclude a sub-category of children, on the grounds

of age, from the scope of the Act.”

The respondent also obtained leave to apply for judicial review on the ground that the legislation was not in compliance with

the obligations of the State pursuant to the European Convention on Human Rights. This judgment is concerned only the

complaint that the definition of child is incompatible with the Constitution.

O’Neill J said that the Act of 2002 sets forth the criteria under which a person can apply for redress for abuse in certain

residential institutions, in particular by setting of an age limit. He considered that, by "its very nature, the setting of an age

limit is discriminatory.” He believed, therefore, that the burden of proof shifted “to the State to justify the reason for the

discrimination.” he did not believe that the limitation of the right to redress to persons who had been under 18 years of age

at the relevant date served a legitimate legislative purpose. He continued:

"The preamble to the act of 2002 expressly states that the class of person chosen to benefit from the scheme

was ' children ... resident in certain institutions.’ The applicant was one such person. At the time she was

resident in the Home she was a child as the law then defined that status. Apart from the obvious need to

establish a cut-off point in terms of age, to limit the extent of the scheme, no other reason has been advanced

to justify what, in effect, is the retrospective removal from the applicant of the benefit of her legal status as a

child when she was resident in the home. The arbitrariness of this discrimination is graphically illustrated by

the comparison with her sister.”

In essence, therefore, the learned High Court judge accepted the respondent’s contention that, at the time of her residence in

the Home, the term “child” was generally understood in law as including every person under the age of 21 years. That was

the foundation of his conclusion that the legislation was discriminatory.

The background to the passing of the act of 2002 and the establishment of the Residential Institutions Redress Board is

addressed in detail in the submissions of the parties. On 23 May 2000 the government, pursuant to the Commission to

Enquire into Child Abuse Act, 2000, established the Commission to Inquire into Child Abuse. In its first interim report, that

Commission referred to a number of submissions that had been made to it proposing a scheme of compensation for

survivors of institutional child abuse. The Commission considered that, while the establishment of such a scheme was a

policy issue for the Government, the State might be prepared to commit in principle to the establishment of an appropriate

body to deal with compensation issues. This led to the enactment of the Act of 2002.

It is apparent from the several references to "child abuse" and "children" in the long title to the act of 2000 that the purpose

of the Act and of the Commission which it established was concerned with the abuse which had been suffered by children

over many years in residential institutions in the State. It contains a definition of "child” which is in identical terms with that

in the Act of 2002, i.e. limiting the age of a child to a person under the age of 18 years.

The long title to the act of 2002 describes it as: "an act 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 that are consistent with abuse received while so resident ..."

The scheme of the Act is based on: a definition of abuse, a definition of a child and a definition of residential institution.

"Abuse", as defined in section 1, includes both physical and sexual behaviour towards children. It is the same definition as

that contained in the Act of 2000. The term "institution” is defined by reference to a list of named institutions set out in the

Schedule to the Act. The institution to which the respondent was admitted is not included in that list. However, section 4

conferred power on the Minister to provide "for the insertion in the schedule of any industrial school, reformatory school,

orphanage, children's home, special School which was established for the purpose of providing educational services to

children .... or a hospital providing medical or psychiatric services to people with a physical or mental disability or

mental illness in which children were placed and resident and in respect of which a public body had a regulatory or

inspection function.” By an Order entitled the Residential Institutions Redress Act, 2002 (Additional Institutions) Order

2004, dated 9th November 2004, the Minister for Education and Science exercised that power by adding the Home to the

institutions listed in the Schedule to the Act. That Order, as required by the Act, was approved by a resolution of both

Houses of the Oireachtas.

Section 1 of the Act of 2002 provides that "child” means "a person who has not attained the age of 18 years and [that]

cognate words shall be construed accordingly."

Section 7 provides for the entitlement to an award in the following terms:

“(1) Where a person who makes an application (an “applicant”) for an award to the Board establishes to the

satisfaction of the Board—

(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is

alleged to have occurred while so resident,

the Board shall make an award to that person in accordance with section 13 (1).”

Section 8(1) provides that, subject to a power of extension contained in section 8(2), an application shall be made within 3

years of the establishment day appointed by the Minister pursuant to section 2. That period expired on 15th December

2005.

The Court is not concerned, in this appeal, in any way with the substance or merits of the respondent’s claim for redress.

She was excluded in limine from having her claim considered, by reason of her age at the relevant time. Nonetheless, it

should be noted that, by virtue of section 7(4) of the Act, the making of an application to the Board did not “involve the

waiver of any other right of action” by her.

It is also important to note the precise terms and effect of the High Court Order. The learned judge limited the declaration of

unconstitutionality which he made to the definition of “child” in section 1. It did not extend to the use of the word

“childhood” in section 7. The learned High Court judge was of the view that section 7 could function without the definition

of “child” from section 1 and that the meaning of “childhood” could be ascertained from the general law. His view was that,

in 1968, any person under the age of twenty one, the age of majority, would have been considered to be a child.

The essence of the very detailed submissions of the appellants can be reduced to two propositions. Firstly, the impugned

legislation enjoys, with every enactment of the Oireachtas, a presumption of constitutionality: the Act of 2002 deals with an

exceptionally sensitive social issue and the presumption applies with particular force; the respondent, therefore, bears a

particularly heavy burden in order to establish its incompatibility with the Constitution. Secondly, it is well established that a

legislative classification by reference to age, such as in the Act of 2002, does not, in itself, raise any presumption of

discrimination.

The essence of the respondent’s case, on the other hand, is that she had a right to be considered, under the legislation, as

having been a child in 1968, the time when she was resident in the Home. At that time, a child was generally considered to

be any person under the age of twenty one. Accordingly, the difference in treatment between her, a person between the age

of eighteen and twenty one at that time, and another person under the age of twenty one but under the age of eighteen,

notably her own sister, so that the second could claim redress and the first could not amounted to discrimination serving no

legitimate legislative purpose. It was, therefore, incompatible with Article 40, section 1 of the Constitution.

Consideration and decision

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 which operates in favour of the

impugned provision. Hanna J expressed the matter in the following terms in Pigs Marketing Board v. Donnelly (Dublin)

Ltd. [1939] I.R. 413, at p. 417:-

"When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an

axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be

constitutional unless and until the contrary is clearly established."

As has been frequently said, the presumption “…springs from, and is necessitated by, that respect which one great organ

of State owes to another.” (per O’Byrne J in Buckley v Attorney General and another [1950] I.R. 67). Keane C.J.

emphasised, in giving the judgment of this Court in In re the Planning and Development Bill, 1999 [2000] 2 I.R. 321 at

357, that “the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established

applies with particular force to legislation dealing with controversial social and economic matters.”

It can scarcely be questioned that the scandal of the abuse, especially sexual abuse, of children in the State has preoccupied

society at every level over recent decades and is a matter requiring especially sensitive and careful examination and response

at every level including legislative. The function of legislating for such matters is, by virtue of Article 15 of the Constitution

reserved to the Oireachtas. Thus, the impugned legislation enjoys a presumption of constitutionality. Put otherwise, the

applicant (now respondent) 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.

The respondent's challenge to the legislation is founded solely and exclusively on the proposition that the definition of

“child,” chosen by the legislature, offends Article 40, section 1 of the Constitution by being discriminatory, that is for failure

to hold all citizens “equal before the law.”. The particular discrimination alleged is that section 1 of the Act of 2002

establishes differences of treatment between people who are under the age of 21 in 1968, all of whom should be treated

equally. The rationale underlying this argument is the respondent’s contention that anybody under that age was, at the

relevant time, considered in law to be a child. The purpose of the Act of 2002 is to provide a scheme of redress for people

who were considered to be children at the time they were placed in institutions. In other words, the respondent does not in

any way dispute the appropriateness of a scheme of legislation directed to providing redress for children and only for

children, who were abused in residential institutions in the past.

The attack, therefore, relates to the choice of an age criterion of eighteen rather than twenty-one. This classification, it is

said, is discriminatory.

However, almost all legislation addressed to the regulation of society resorts to some form of classification. Age is frequently

used as a classification of inclusion or exclusion for multitudes of legislative purposes. There is nothing in such classification,

taken on its own, to suggest that it is invidious, unfair or, in the legal sense, discriminatory. Hamilton C.J., in giving the

judgment of this Court in In the matter of the Employment Equality Bill 1996 [1997] 2 I.R. 321 at page 346 considered age

classification as follows:

“Article 40, s. 1 as has been frequently pointed out, does not require the State to treat all citizens equally in

all circumstances. Even in the absence of the qualification contained in the second sentence, to interpret the

Article in that manner would defeat its objectives. In the present context, it would mean that the State could

not legislate so as to prevent the exploitation of young people in the work place or, at the other end of the

spectrum, to make special provision in the social welfare code for the elderly. The wide ranging nature of the

qualification which follows the general guarantee of equality before the law puts beyond doubt the legitimacy

of measures which place individuals in different categories for the purposes of the relevant legislation. In

particular, classifications based on age cannot be regarded as, of themselves, constitutionally invalid. They

must, however, be capable of justification on the grounds set out by Barrington J. in Brennan & ors. v.

Attorney General [1983] I.L.R.M. 449 at p. 480 as follows:—

"the classification must be for a legitimate legislative purpose . . . it must be relevant to that purpose, and that

each class must be treated fairly.”

Keane C.J., in his judgment in In re the Planning and Development Bill, 1999, cited above, referred with approval to this

passage and added, at page 357:

"However, Article 40 does not preclude the Oireachtas from enacting legislation based on any form of

discrimination: as has often been pointed out, far from promoting equality, such an approach would simply

result in greater inequality in our society."

Neither the statement of Hamilton C.J. that such legislation must be “capable of justification” nor that of Barrington J that

a “classification must be for a legitimate legislative purpose” should be interpreted as imposing a burden of justification

on the Oireachtas, save, it may be, for cases of invidious categories of the sort considered to be “presumptively at least,

proscribed by Article 40.1 [though] not particularised…” (see Hamilton C.J. In the matter of the Employment Equality

Bill 1996, cited above at page 347). It was there said that: “manifestly, they would extend to classifications based on sex,

race, language, religious or political opinions.” The respondent accepts that age, as a ground of alleged discrimination,

does not raise the sort of concerns that are posed by these types of discrimination, and that the State is not required to

justify discrimination in this case. It is submitted, however, that the State is required to identify a possible justification. The

Court is satisfied that it is a matter for the respondent to demonstrate a prima facie basis for the claim that the classification

is discriminatory.

It is apparent from the background to the legislation that the object of the legislature was to provide a scheme of redress or

compensation for victims of abuse during childhood. The act of 2002 and its predecessor, the act of 2000, were exclusively

directed to redressing the injuries suffered by children. Quite obviously, the legislation is not concerned with residents in

hospitals, mental hospitals, prisons, in short any institution other than those catering for children.

During the hearing, counsel produced a wide range of examples of the use of age limits and definitions in various statutes

and for various purposes. The court is not satisfied that it was established that, in 1968, the word "child" was understood as

including any person under the age of 21. The judgment under appeal treats childhood as being coterminous with minority.

The learned judge described the respondent and her sister as being both “minors in law at the time.” 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. The definitions overlap, but they are different. The Age of Majority Act, 1985 reduced the age of majority from

twenty one to eighteen, but did so without referring to “child” or “childhood.” The word “infancy,” as a legal term of art

was used historically as equivalent to “minority.” It is in that sense that it was used in section 2 of the Guardianship Act,

1964 as meaning a “a person under twenty-one years of age…” By virtue of section 9 of the Status of Children Act, 1987,

it is now to be construed in accordance with the Age of Majority Act, 1985. Infant, in that sense, is not the same as a child.

It follows from the conclusion that the age of majority is not the converse of childhood, that the premiss of the respondent’s

discrimination case fails.

In deciding as a matter of policy to establish a special scheme of redress for abused children the Oireachtas necessarily had

to define the scope and limits of its application. 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. The definition

of “child” as a person under the age of eighteen years represents an objective classification, containing no element of

discrimination. It is neither arbitrary nor irrational.

The court is satisfied that the Act of 2002, in designating persons under the age of 18 at the relevant time as the beneficiaries

of the redress scheme represented a legitimate exercise of legislative power and that it is not incompatible with the

Constitution.

The court will, therefore, allowed the appeal on this ground and dismiss the application for judicial review based on the

allegation that the Act was unconstitutional.