'Irrational' to exclude woman from Mother and Baby payment scheme

She is seeking to quash a 2025 decision by the department refusing her a payment under a section of the scheme

The woman, who cannot be identified by court order, was refused on the basis that she had not spent 180 days in the institution, the minimum required to qualify for redress. Picture: Laura Hutton/RollingNews

A woman has been granted leave to challenge an “arbitrary and irrational” refusal of her application for financial redress under the mother and baby institutions payment scheme.

The refusal decision, her lawyers say, could also see up to 24,000 people excluded from the payment.

The woman, who cannot be identified, was refused on the basis that she had not spent 180 days in the institution — the minimum required to qualify.

She has taken her case against the minister for children and the Attorney General. She is seeking to quash a 2025 decision by the department.

It is submitted by the woman’s lawyers that the scheme discriminates between residents in mother and baby institutions by denying payments to those who were there for fewer than 180 days, while providing payment to those who were resident for 180 days or more.

The 180-day rule is also claimed to be a breach of the European Convention on Human Rights.

The woman is also seeking a declaration from the court that Section 18 (1) and 18 (4) of the 2023 scheme are “invalid and repugnant” to Constitution Articles 40.1 and 40.3 “in as much as they discriminate arbitrarily, capriciously, and irrationally” in terms of redress payments regarding the 180-day exclusion rule.

The applicant was born in the 1960s in Ireland, and she was taken into an institution for 130 days. She was separated from her mother days after birth, and was fostered by a family who adopted her.

It is submitted that she was well cared for by her adoptive parents into adulthood, but had experienced discrimination, shame, anger, bullying, and stigma as a consequence of having been separated from her mother and adopted from a mother and baby home.

The woman applied to the payment scheme in 2024, but received a notice of determination that she was “not a relevant person” for the purposes of the act, adding that she was not entitled to either the payment or health supports.

The basis for that decision was that she had not spent over 180 days in the institution as a child. She sought a review of that decision later that year, but it reaffirmed the determination. She appealed that review, which included submissions and correspondence from her adoptive mother.

A subsequent appeal that upheld the original decision is now the subject of the High Court challenge before the courts.

It is submitted that, despite having a shared experience, some of the woman’s siblings were entitled to redress but others were not.

“No justification for this differential treatment is apparent,” it is submitted.

It is also submitted that the woman’s birth mother is eligible for redress under the scheme, yet the applicant is not.

At the High Court this week, Colin Smith SC, for the woman, told Ms Justice Mary Rose Gearty the “arbitrary” cut-off point of having to have spent 180 days in an institution meant “she gets nothing”.

Mr Smith said the 180-day rule excludes 24,000 people, despite a State apology in 2021 that, it is submitted, covered the applicant regarding redress.

Ms Justice Gearty said the case was a “very sensitive” one, making an anonymity order before granting permission to seek judicial review. She then adjourned the matter to next month.