Lawyers for the woman told the High Court the decision, regarding the duration of their client’s stay in an institution, could see up to 24,000 others excluded from the scheme.
The woman, who cannot be identified by court order, was refused on the basis that she had not met the minimum 180-day threshold required to qualify for redress.
She has taken her case against the Minister for Children, Disability and Equality, Ireland and the Attorney General. She is seeking to quash the department’s decision of last year refusing her a payment under a section of the scheme.
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 resident for fewer than 180 days, while providing payment to those resident for that period or longer.
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 “inasmuch 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 was taken into an institution for 130 days. She was separated from her mother days after birth and fostered by a family who then adopted her.
It is submitted that she was well cared for by her adoptive parents into adulthood, but 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 and was therefore not entitled to either the payment or health supports.
The basis for that decision was that she had not spent more than 180 days in the institution as a child.
She sought a review of that decision, but this 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 other siblings 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, barrister for the woman, told Judge Mary Rose Gearty the “arbitrary” cut-off point of having to have spent 180 days in an institution meant “she gets nothing”.
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.
The judge said the case was a “very sensitive” one and made an anonymity order before granting permission to seek judicial review. She then adjourned the matter to next month.
In January 2021, then-taoiseach Micheál Martin offered a State apology to survivors of the mother and baby institutions and then published an action plan.