The Supreme Court has rejected a European Convention on Human Rights challenge to the age limit in the Residential Institutions Redress Scheme.
J.D. sought redress under the Residential Institutions Redress Act 2002. Her case turned on the statutory definition of a child as a person under 18. She argued that, when she was resident in the institution in 1968, childhood in law extended to age 21 and that excluding those aged between 18 and 21 amounted to discrimination.
The Residential Institutions Redress Review Committee rejected her claim in October 2006. She later sought judicial review.
A separate Supreme Court judgment had already overturned a High Court declaration that the definition of child was unconstitutional. Mr Justice Fennelly’s judgment dealt with J.D.’s remaining argument under the European Convention on Human Rights Act 2003.
Her case relied on Article 8, protecting private and family life, combined with Article 14, which prohibits discrimination in the enjoyment of Convention rights.
The court accepted that Article 14 can apply even without a separate breach of Article 8, provided the facts fall within the scope of Article 8. But it found that this condition was not met here.
The abuse alleged by J.D. occurred decades before the 2003 Act came into force. The later addition of the institution to the redress scheme in 2004, and the Review Committee’s 2006 decision, did not retrospectively bring those events within the Convention.
Mr Justice Fennelly distinguished between a State obligation to protect Convention rights and a voluntary decision to establish a compensation scheme for historic abuse. He held that creating the scheme did not make the State responsible under Article 8 for earlier acts committed by others.
The court also found insufficient authority for treating the under-18 threshold as prohibited age discrimination under Article 14.
The cross-appeal and request for a declaration of incompatibility were dismissed.