Supreme Court dismissed cross-appeal claiming Act of 2002 definition of child violates ECHR Articles 8 and 14.

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 Mr. Justice Fennelly delivered the 27th day of July, 2009.

1. This judgment concerns the non-constitutional aspect of the application by the respondent for judicial review of the

decision of the Residential Institutions Redress Review Committee dated 6th October 2006, namely that which is based on

the European Convention on Human Rights Act, 2003. It is the subject of the respondent’s cross-appeal.

2. The Court, in its judgment, delivered by the Chief Justice, has allowed the appeal of the appellants and set aside the

declaration made by the High Court that the definition of "child" in section 1 (1) of the Act of 2002 is unconstitutional.

3. By his order dated 28th November 2006, Peart J in the High Court also granted leave to the respondent to apply for

judicial review taking the form of an application for a declaration that section 7 (1) of the Act of 2002 is incompatible with

the obligations of the State under the European Convention on Human Rights. In reality, the target remains section 1(1),

rather than section 7(1) of the Act of 2002. Although the appellants have objected that leave was not granted to challenge

the latter provision, I am satisfied that the two sections are so intimately linked and that, having regard to the course of the

proceedings, the Court should deal with the cross-appeal on its merits.

4. I will call this the Convention ground. The facts and legislative background are set out in the judgment of the Court and it

is unnecessary to repeat them. The terms “Home” and “Act of 2002” are as defined in that judgment.

5. The Convention ground has been argued on the respondent’s cross-appeal on a narrower basis than was allowed by the

leave order. The submission is that, on the combined basis of Article 8 of the Convention, concerning respect for private

and family life, and Article 14, which prohibits discrimination in the securing of Convention rights generally, that the

definition of “child” in the Act of 2002 is incompatible with the State’s obligations under the European Convention on

Human Rights. On that basis, the respondent seeks a declaration pursuant to section 5 of the European Convention on

Human Rights Act 2003 (“the Act of 2003”) that the section is incompatible with the Convention.

6. The respondent submitted to the High Court that the State had attempted to honour its obligations under Article 8 by

enacting the Act of 2002 in order to provide a legal mechanism for redress of injury suffered but that it could not operate the

scheme in a discriminatory way: the treatment suffered by the respondent in the Home failed to respect her right to respect

for her private and family life and, unless the Act was interpreted so as to include the respondent, she would be

discriminated against in the operation of the redress scheme contrary to Article 14 of the Convention. The respondent

argued, in the first instance, that the Act should be interpreted, in accordance with section 2 of the Act of 2003, so as to

include her within the definition of “child” at the relevant time.

7. The learned High Court judge rejected this argument, applying the decision of this Court in Dublin City Council v.

Fennell [2005] 1 I.R. 604. He held that the Act of 2003 not apply retrospectively: the respondent could not rely on a breach

by the State of her rights under the Convention in respect of events that had occurred before the enactment of the Act of

2003. Thus, the Article 8 rights of the respondent based on events which occurred in the 1960s could not be engaged. He

also held that the provision of the remedy of redress under the Act of 2002 to those who had not attained the age of

eighteen years when resident in an institution in the past was not capable of giving rise to a breach of Article 8 rights: Article

8 is not concerned with the right to redress. Article 14, he continued, does not provide a stand-alone right. None of the

events occurring after the entry into force of the Act of 2003 could have had the effect of reviving the engagement of Article

8 in favour of the respondent, as the events giving rise to the alleged breaches of the respondent’s Article 8 rights took place

long before the coming into force of the Act of 2003.

8. The respondent has filed a Notice of Cross-appeal against the decision of the High Court insofar as it rejected the

application for a declaration of incompatibility.

9. The respondent conceded, in written submissions, filed prior to the hearing of the appeal, that she could not maintain that

section 1 of the Act of 2002 could be interpreted so as to give effect to a definition of “child” which would include her. This

is clearly correct. The age limit of eighteen, which is written into the section, cannot be set aside by any process of

interpretation. The age of eighteen cannot, by any process of interpretation, be transformed into the age of twent-one.

10. The essence of the respondent’s submission on the cross-appeal that the Act of 2003 can apply notwithstanding the

decision Dublin City Council v. Fennell is as follows:

§ The decision of the Review Committee dated 6 October 2006 was a sufficient post-2004 event to “engage” the

application of the Act of 2003 and the respondent’s Convention rights;

§ The decision of the Minister for Education to make the Residential Institutions Redress Act, 2002 (Additional

Institutions) Order 2004, dated 9th November 2004, adding the Home to the Schedule to the Act of 2002, and the decision

of the Oireachtas to approve it had the same effect;

§ Article 8 of the Convention was engaged by the redress scheme.

11. Article 8 of the Convention is entitled: “Right to respect for private and family life.” It provides:

“1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic society in the interests of national security, public

safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and freedoms of others.”

12. Article 14 is entitled: “Prohibition of discrimination.” It provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language, religion, political or other opinion, national or social

origin, association with a national minority, property, birth or other status.”

13. Mr Oran Doyle, barrister at law, counsel for the respondent explained, in support of the cross-appeal, that the

respondent’s complaint was, in essence, one based on discrimination contrary to Article 14. To that extent, the respondent’s

complaint is the same as was made on her behalf in the constitutional claim, by reference to Article 40, section 1 of the

Constitution. Counsel relied on the same arguments to sustain it. The discrimination alleged is that, since “child” in 1968

meant any person under the age of twenty one years, the definition in section 1(1) discriminates against children aged

between eighteen and twenty-one.

14. Counsel accepted, however, that article 14 cannot be invoked on its own. It must be linked with another Convention

right. In the present case, he argued, Article 14 was linked with Article 8. The respondent's right to respect for her private

life was infringed when she was resident in the home in 1968. Although there had been no breach of her Article 8 rights

after 2003, it was not necessary to allege any such infringement. It was sufficient that her Article 8 rights were “engaged.”

This “engagement” occurred by virtue of the Order of 2004 adding the Home to the institutions in the Schedule to the Act

or, alternatively, on the making of the decision of the Review Committee on 6 October 2006. In effect, the State was

providing protection for the Article 8 rights of the respondent but was doing so in a discriminatory way.

15. Counsel relied on the decision of the European Court of Human Rights in X and Y v Netherlands (1986) 8 EHRR 235 to

support the proposition that discrimination contrary to Article 14 occurs where a state authority fails to provide a legal means

of making a criminal complaint in respect of invasion of a disabled person's personal privacy. That case concerned a

mentally-handicapped girl who had been sexually abused while a resident of an institution. By reason of an admitted gap in

Dutch criminal law and procedure, no effective legal complaint could be made against the perpetrator of the abuse and thus

no prosecution could be initiated. The girl was aged over sixteen but was considered mentally incapable of making a

complaint. Her father could have made a complaint only if she had been under sixteen years of age.

16. That case is not, in fact, an authority on the combined effect of Articles 8 and Article 14. The Court found a violation

by the Netherlands of Article 8 alone. It did not find it necessary to examine the case under article 14. It emphasised:

"Article 14 has no independent existence it constitutes one particular element (nondiscrimination) of each of the rights

safeguarded by Convention.”

17. In support of the proposition that the definition of "child" in the Act of 2002 constitutes discrimination contrary to article

14, counsel referred to two decisions of the European Court of Human Rights. In Sidabras and Džiautas v Lithuania

(Applications 55480/00 and 5593/00, judgment 27th July 2004), Judge Thomassen said, in his partly dissenting opinion:

“ The principle of nondiscrimination, as it is recognised in European constitutions and international treaties,

refers above all to a denial of opportunities on grounds of personal choices in so far as these choices should

be respected as elements of someone's personality, such as religion, political opinion, sexual orientation and

gender identity, or, on the contrary on grounds of personal features in respect of which no choice at all can be

made, such as sex, race, disability and age."

18. In that case, the applicants succeeded in their claims based on discrimination contrary to article 14 in combination with

article 8. The discrimination consisted in the treatment, for employment purposes, of former members of the Russian secret

service (KGB). No question of discrimination on the grounds of age arose or is mentioned in the judgment of the Court.

19. In the case of DH v Czech Republic (Application number 57325/00, judgment 13th November 2007), the Court

recapitulated the main principles of its case-law on discrimination. Essentially, discrimination means “treating differently,

without an objective and reasonable justification, persons in relatively similar situations ..." On the other hand, it said,

"Article 14 does not prohibit a Member State from treating groups differently in order to correct ‘factual inequalities’

between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may

in itself gave give rise to a breach of the article." The court remarked that "racial discrimination is a particularly

insidious kind of discrimination….” Counsel for the respondent relied, in particular, on the statement that "the court has

established that once the applicant has shown a difference in treatment it is for the government to show that it was

justified ...”

20. The appellants, in their response to the cross-appeal, submit that there is no basis for any asserted breach of Article 8

and that, accordingly, Article 14 of the Convention in conjunction with that provision is not engaged. They rely on the

decision of the Court of Human Rights in Abdulaziz v. United Kingdom (1985) 7 EHRR 471, at paragraph 71, for the

proposition that “[a]ccording to the Court’s established case-law, Article 14 complements the other substantive provisions

of the Convention and the Protocols.”

Consideration and decision

21. The respondent seeks a declaration, pursuant to section 5 of the Act of 2003 to the effect that the definition of “child”

provided by section 1(1) of the Act of 2002 is “incompatible with the State’s obligations under the Convention

provisions.” The claim is based on the claimed combined effect of Articles 8 and 14. The effect of each article must,

nonetheless, be addressed separately.

22. Mr Oran Doyle correctly submitted that, in order to link an Article 14 discrimination with the respondent’s Article 8

rights, he did not have to establish an infringement of the latter. The European Court held in Abdulaziz v. United Kingdom,

cited above, in reference to a claim made on a similar ground, that:

“Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to

this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the

ambit of one or more of the latter [articles of the Convention].”

23. Abdulaziz concerned complaints by a number of female immigrants lawfully and permanently resident in the United

Kingdom, whose husbands had been refused permission under prevailing rules to remain with or to join them there. The

Court, firstly, examined the claims of violation of Article 8. It explained the effect of that provision in the following passage

(paragraph 67 of the judgment):

“The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary

interference by the public authorities, there may in addition be positive obligations inherent in an effective

"respect" for family life…… However, especially as far as those positive obligations are concerned, the notion

of "respect" is not clear-cut: having regard to the diversity of the practices followed and the situations

obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case.

Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in

determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and

resources of the community and of individuals……”

24. Two key points of particular pertinence for the present case emerge from that passage. Firstly, Article 8 is primarily

concerned with protection of individuals against arbitrary interference by public or state authorities with the private and

family life of individuals. Secondly, the state may be under an additional positive obligation to ensure that its legal system

provides effective respect for those rights. That was, indeed, the exact tenor of the Court’s decision in X and Y v

Netherlands. The Court there considered that it was dealing with "a case where fundamental values and essential aspects

of private life [were] at stake," and that "effective deterrence [was] indispensable in this area and it [could] be achieved

only by criminal-law provisions ...” In that case, as in the case of Abdulaziz, the court was dealing with the legal rules in

force, respectively, of the criminal law and of immigration law. Each set of rules was intended to protect the article 8 rights

of individuals and thus fell within the ambit of the Member State’s obligation to secure the Convention rights for individuals.

Article 1 of the Convention imposes a general obligation to respect human rights, under which the Member States are bound

to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

25. In the case of Princess von Hannover v. Germany (Application no. 59320/00; Judgment 24th June 2004), the Court

used slightly different language to restate the principle, in the context of a complaint of persistent media infringement of

personal privacy. At paragraph 57 the court said:

“The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual

against arbitrary interference by the public authorities, it does not merely compel the State to abstain from

such interference: in addition to this primarily negative undertaking, there may be positive obligations

inherent in an effective respect for private or family life. These obligations may involve the adoption of

measures designed to secure respect for private life even in the sphere of the relations of individuals between

themselves…”

26. In Abdulaziz, the court, referring to the margin of appreciation allowed to the United Kingdom in matters of

immigration, found no violation of article 8, taken alone. It went on, nonetheless, to consider that Article 8 together with

article 14 had been violated. Firstly, to use the Court’s own description, the case fell “within the ambit of” Article 8.

Secondly, it noted that it was conceded by the United Kingdom that, under the immigration rules in force in the United

Kingdom, it was easier for a man settled there than for a woman to obtain permission for his or her non-national spouse to

enter or remain in that country. This was held to amount to unjustifiable discrimination. Thus, the court found the United

Kingdom in violation of Article 14 because of the different effects of the immigration rules on men. Though there was no

violation of Article 8, that Article was sufficiently engaged.

27. It may safely be assumed, without the necessity so to decide, that the events amounting to “abuse” within the meaning

of the Act of 2002 in respect of which the respondent sought redress would have amounted to infringements of her private

and family life for the purpose of Article 8, if a State authority had been responsible. It is not—and does not have to be—

any part of the respondent’s case for redress under the Act of 2002 that any organ of the State was responsible for the

abuse. Any abuse occurred in 1968 and 1969 many years before the entry into force of the Act of 2003. The provisions of

the Act did not have the effect of retrospectively applying the Convention provisions to those events, whoever was

responsible for them. That much is clear from the decision of this Court in Dublin City Council v. Fennell and is not

contested by the respondent.

28. Counsel submitted, however, that two events which occurred following the passing of that Act are sufficient, in the

phrase used by counsel, to “engage” the State’s Convention rights pursuant to Article 8. They were the making of the Order

by the Minister on 9th November 2004 adding the Home to the Schedule and the decision of the Review Committee on 6

October 2006.

29. In X and Y v Netherlands, the Court of Human Rights found that the applicant, by virtue of the nature of the

wrongdoing, had been the victim of a violation of Article 8 by the Netherlands. The reasoning underlying this decision is that

the applicant, although not the victim of a direct violation of her Article 8 rights by the Dutch state, was entitled to complain

that the state, by failing to provide an effective legal remedy, had insufficiently protected those rights. The cases of von

Hannover v Germany and Abdulaziz v United Kingdom exemplify the same principle. In the first two cases, breaches of

Article 8 were found. In the third, there was no breach of Article 8, which was, nonetheless, sufficiently applicable to the

facts of the immigrant families to enable the applicants to bring Article 14 into play.

30. That is the sense in which “engagement” should be understood. It implies the performance by a state of its obligation,

though not limited to the enactment of appropriate laws, to secure the enjoyment of Convention rights by persons within its

jurisdiction. The responsibility of a state may be “engaged” in a wide range of situations. It may impinge on the executive as

well as the legislative functions of the state. In the case of Von Hannover, it was the German courts at many levels which

were found to have failed effectively to protect the Princess’s right to privacy. The present complaint arises directly from

the enactment of legislation. The question is whether that legislation engages the responsibility of the State in respect of the

Article 8 rights of affected persons, or, to recall again the phrase from Abdulaziz, that legislation “falls within the ambit of”

Article 8.

31. The legislative scheme is designed to provide redress for persons who, during childhood, suffered abuse while resident in

institutions in the State. It is not argued that the State, in enacting the Act of 2002, was performing any obligation incumbent

on it under the Convention. Nor is it argued that the State was itself responsible in law for the abuse when suffered by

children resident in those institutions. The State, through its legislative organ, the Oireachtas was giving effect to a policy

decision to compensate victims of institutional childhood abuse.

32. There is a clear distinction between the obligation of the State 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. In the first case, the state is bound to provide

protection for victims of criminal infringement of Convention rights. I do not think that the State, in enacting the Act of

2002, was indirectly attracting to itself Convention obligations derived from the actions of other persons committed in the

past. There is no necessary implication in the Act of 2002 that the State was itself, vicariously or otherwise, responsible for

the abuse of children, who now, as adults, were to be provided with a means of seeking redress.

33. Thus, I would not accept that the enactment of the legislation, combined with the two post-2003 events, had the effect

of “engaging” the responsibility of the State by reference to the Convention as to the form of the legislation. On that ground,

I would reject the cross-appeal.

34. Apart from that conclusion, I am also not persuaded that the respondent has established any discrimination contrary to

article 14. Counsel for the respondent accepted that the discrimination of which complaint is made is essentially of the same

character as that alleged by reference to article 40, section 1 of the Constitution. Starting from the conclusion expressed in

the judgment which the Chief Justice has delivered on behalf of the Court that the definition of a “child” as a person under

eighteen years does not amount to unequal treatment for the purpose of Article 40, section 1, it would be natural to look for

some persuasive indication of a different view from the Strasbourg Court, before the Court could grant a declaration of

incompatibility with the Convention. The two authorities cited, which I have mentioned above, fall well short of establishing

that the European Court of Human Rights treats classification by reference to age as amounting to discrimination for the

purposes of article 14. Indeed, the approach of the European Court does not seem to be markedly different from our own.

The interpretative obligation imposed on the Court by section 2 of the Act of 2003 and the obligation to take judicial notice

of, inter alia, judgments of the Court of Human Rights does not require this Court to go beyond what has been established

by Strasbourg. It is desirable to aim for uniform interpretation of the Convention and undesirable that national courts adopt

their own interpretations potentially at variance with those adopted in other contracting states.

35. I am satisfied that the respondent has not shown that the definition of "child" in section 1 of the Act of 2002 is

incompatible with the obligations of the state pursuant to the Convention.

36. Accordingly, I would dismiss the cross appeal and the application for a declaration pursuant to section 5 of the Act of

2003.