Government appeals landmark mother and baby homes redress ruling

Marie Thornton pictured outside the High Court

The Department of Children is to appeal a landmark High Court ruling on the Mother and Baby Institutions Payment Scheme, warning that the judgment has created a “grave degree of uncertainty” around the redress programme.

A spokesperson for the department said the decision was taken following consultation with the Office of the Attorney General, with legal advice indicating the ruling could leave the scheme “so unclear in scope as to become unworkable".

The Department said it is responsible for administering the scheme in line with the legislative intent of the act as passed by the Oireachtas, and defended two recent judicial review cases in that role.

The High Court ruling arose from a case taken by survivors Marie Thornton and John Duncan Morris, who were excluded from the scheme.

They are among an estimated 19,000 people not covered, including those who spent less than six months in institutions or were boarded out.

In a judgment delivered by Alexander Owens last month, the court found that the Minister for Children Norma Foley erred in law in assessing whether certain institutions could be added to the scheme.

The case focused on the interpretation of Section 49 of the legislation, which allows the minister to include additional institutions if they provided “pregnancy related and infant care services” and were subject to regulatory or inspection functions.

However, John Duncan Morris and Marie Thornton had been in institutions providing infant care only and their legal team argued that this was unfair.

Mr Justice Owens found the minister failed to properly apply part of the legal test, by not assessing the purpose for which the institutions including St Joseph’s and Temple Hill were established.

He also rejected the interpretation that institutions must have provided both pregnancy-related and infant care services to qualify.

The ruling means the minister must now reconsider whether the institutions should be added to the scheme, taking account of the court’s findings.

Mr Morris told the Irish Examiner the case had taken a personal toll. “We all lived these horrible lives in those homes. We just want to get this case finalised,” he said.

Solicitor Norman Spicer from Coleman Legal described the decision as a “milestone” that could help ensure survivors are treated equally.

The Department said its appeal is necessary to bring clarity to how the scheme operates and is interpreted in law.

In a statement a spokesperson said the Department is responsible for overseeing the administration of the Mother and Baby Institutions Payment Scheme.

It said: “It must do this in line with the legislative scope and intent of the Mother and Baby Institutions Payment Scheme Act, as enacted by the Oireachtas.

“In that custodial role, the Department defended two recent High Court Judicial Review applications in relation to the Mother and Baby Institutions Payment Scheme Act.

“The Department consulted with the office of the Attorney General and its legal team.

“On the advice of the Attorney General, the decision to appeal the High Court judgement has been made.

“This was on the grounds that the High Court judgement has generated a grave degree of uncertainty in relation to the Mother and Baby Institutions Payment Scheme Act, including potentially rendering the Payment Scheme so unclear in scope as to become unworkable.”