About this case:

• Judge:
  Mr Justice Alexander Owens

Delivering judgment for the High Court, Mr Justice Alexander Owens confirmed: “The evidence establishes that the Minister did not apply the first limb of the test when she decided that she was precluded from making a regulation including St Joseph’s and Temple Hill in Schedule 1 of the 2023 Act.”

Background

The applicants were placed in St Joseph’s Baby Home in Stamullen, Co Meath and Temple Hill Hospital in Blackrock, Co Dublin when they were babies.

They sought orders compelling the respondent Minister to make a regulation adding St. Joseph’s and Temple Hill into Schedule 1 of the Mother and Baby Institutions Payment Scheme Act 2023, which would allow them to apply for payments and other benefits under the Mother and Baby Institution Payment Scheme established by that Act.

The applicants’ solicitors corresponded with the then Minister on behalf of a number of their clients in March 2024, complaining that the facilities had been excluded from the list of “relevant institutions” specified in Schedule 1 of the Mother and Baby Institutions Payment Scheme Bill.

The reason for the exclusion from the redress scheme was that it had been decided that the facilities lacked the “mother” component of a “mother and baby” home.

The applicants again called upon the Minister for exercise the power under s.49(1) of the 2023 Act to make a regulation including the facilities after the Act was signed into law, but received no response

In those circumstances, the applicants instituted judicial review proceedings inter alia asking the High Court to direct the Minister to make the regulation sought.

The High Court

Mr Justice Owens confirmed that the court could not so direct the Minister as the court has a “very limited role and cannot usurp the functions entrusted by s.49 of the 2023 Act to the Minister and to the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation”.

The court explained that s.49 of the 2023 Act is an enabling rather than a mandatory power or discretion and that the remedy of mandamus “does not does not lie to force the Minister to exercise this type of discretion: see State (Sheehan) v. The Government of Ireland [1987] I.R. 550, per Henchy J. at 561 and 562”.

The judge explained that the only issue which the court could properly entertain was whether the Minister applied the law correctly in evaluating whether or not she could make a regulation under s.49(1), in circumstances where the Minister can only make a regulation pursuant to s.49(1) in respect of an institution which meets qualifying criteria specified in that provision.

The court noted that the first issue which the Minister was required to examine was whether she had sufficient information to allow her to conclude that each facility was an “institution which was established for the purpose of providing pregnancy related and infant care services and the placement of children for the purposes of adoption or care arrangements, and in respect of which a public body had a regulatory or inspection function”.

Highlighting that this was the test and the relevant words of s.49(1), the court explained that the litigation was concerned with the first limb of this test, being whether the institution was one established for the purpose of providing pregnancy related and infant care services and the placement of children for the purposes of adoption or care arrangements.

The court recounted that the proceedings took “an unusual course” and that at the time when the proceedings were commenced, the applicants did not know whether the Minister had considered their further requests to include the facilities in Schedule 1.

Noting that the focus of the applicants’ challenge was a complaint of unfairness and unequal treatment arising due to the omission of the facilities from Schedule 1, the court observed that there appears to be a misconception that an assertion that a public body has acted improperly suffices to impose an obligation on that body to establish at the substantive hearing that the decision being challenged was taken regularly.

Emphasising that this does not represent the law except in habeas corpus cases, Mr Justice Owens clarified that in judicial review proceedings, applicants who allege that a decision-maker has acted irregularly must identify the irregularity complained of and must evidence that claim.

The judge explained that if the hearing had proceeded solely on the basis of the evidence tendered by the applicants, their claim might have failed.

However, the Minister “stuck her head above the parapet” via her statement of grounds and verifying affidavit, in which it emerged that she decided not to make a regulation under s.49(1) in respect of the facilities because she considered that neither was an institution established to provide antenatal and postnatal care services to mothers and so could not meet the first limb of the test.

The court focused on the interpretation of s.49(1) and its context, noting that provisions in remedial statutes are interpreted in favour of their general purpose.

The court highlighted that the first apparent statutory objective was that a child who was resident in a relevant institution during childhood for reasons other than that child’s pregnancy should be entitled to receive compensation and certain free health services in recognition of the conditions which children were subjected to therein.

Mr Justice Owens analysed the individual terms in the test, finding that if an institution was established for the purpose set out in the relevant words, it would not matter that mothers were provided with maternity services and residence in one facility and that their children were placed in, or moved to, a different facility of that institution.

The judge confirmed that the fact that that the facilities at St Joseph’s and Temple Hill did not provide care to expectant mothers or to mothers post-partum was not dispositive of whether the institutions associated with those facilities satisfied the test.

In that regard, the court determined that the Minister misinterpreted one aspect of the test, and had treated irrelevant determinations by the Inter-Departmental Group on Mother and Baby Homes and the Commission to Inquire into Child Abuse on whether the facilities were “mother and baby homes” as relevant in circumstances where those who made those determinations were not tasked with applying the test set out in s.49(1).

Mr Justice Owens considered that the currently available information suggested that Temple Hill may meet the first limb of the test, and that if the institution associated with St Joseph’s was established for the purpose of providing pregnancy related care services, the fact that those services were not provided at Stamullen “would not, of itself, be decisive”.

Conclusion

Accordingly, the High Court proposed to make declarations that the Minister erred in law in evaluating whether the facilities were institutions established for the purpose set out in the relevant words.

John Kiernan v Minister for Children Equality, Disability, Integration and Youth

Marie Thornton v Minister for Children Equality, Disability, Integration and Youth