Functional “Institution” Test under s.49(1) of the Mother and Baby Institutions Payment Scheme Act 2023: multi-facility purpose, not single-site maternity services

Case: Kiernan [Otherwise John Duncan Morris] v Minister For Children, Equality, Disability, Integration and Youth, Thornton v. Minister For Children, Equality, Disability, Integration and Youth (Approved) [2026] IEHC 258
Court: High Court of Ireland  |  Judge: Owens J.  |  Date: 16 February 2026
Procedure: Judicial review (two applications heard together)

1. Introduction

These joined judicial review proceedings concerned whether the Minister for Children, Equality, Disability, Integration and Youth (“the Minister”) correctly applied s.49(1) of the Mother and Baby Institutions Payment Scheme Act 2023 (“the 2023 Act”) when declining to consider making regulations to add (i) the facility commonly known as St Joseph’s Baby Home, Stamullen and (ii) Temple Hill (also referred to as St Patrick’s Infant Hospital / Dietetic Hospital, Blackrock) to Schedule 1 of the 2023 Act.

The applicants (former residents as infants) sought relief that would, in substance, secure access to the statutory redress scheme (“the Scheme”), because eligibility depends on qualifying residence in a Schedule 1 “relevant institution”. The central legal issue was narrow: whether the Minister misapplied the statutory criteria governing the possible addition of further institutions by regulation under s.49.

2. Summary of the Judgment

  • Owens J. held the court could not order the Minister to make a regulation adding the facilities to Schedule 1; s.49 is an enabling power and not a mandatory duty, and any regulation also requires the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform (public finance implications).
  • The court nevertheless granted declaratory relief that the Minister erred in law in her evaluation of whether St Joseph’s and Temple Hill met the first limb of the statutory test in s.49(1).
  • The Minister’s approach—treating the absence of antenatal/postnatal services provided at those facilities as dispositive—failed to apply the “nuts and bolts” of the statutory inquiry into the institution and the purpose for which it was established.
  • Constitutional equality and ECHR-based submissions were rejected as outside the permissible scope of the proceedings (no constitutional challenge to s.49(1); no s.5(1) claim under the European Convention on Human Rights Act 2003; and arguments exceeded the leave granted).

3. Analysis

3.1 The statutory framework: what s.49(1) requires

Section 49(1) empowers the Minister (with the requisite consent of the public expenditure minister) to insert an institution into Schedule 1 if it satisfies qualifying criteria. The judgment treats the relevant qualifying phrase as a structured test, whose first limb requires the Minister to identify:

  • the relevant “institution”, and
  • the composite purpose for which that institution “was established”.

Owens J. emphasised the statutory wording imposes a composite requirement: the institution must have been established for the purpose of providing pregnancy related and infant care services and the placement of children for adoption or care arrangements. The court agreed with the Minister that this is not a drafting context where “and” can be read as “or”; the statute does not permit inclusion of institutions established only for infant care/placement absent the pregnancy-related element.

3.2 The key interpretive move: “institution” is not necessarily a single building

The main point of legal significance is Owens J.’s adoption of a functional understanding of “institution” in s.49(1). The court held that:

  • An “institution” is not necessarily synonymous with a single premises or facility; it may be an organisational/charitable entity operating through multiple sites.
  • If an institution was established for the composite purpose in s.49(1), it is not decisive that pregnancy-related care services and infant care services were delivered in different facilities.
  • It is likewise not decisive that the institution discontinued pregnancy-related services at some later point; s.49(1) focuses on the purpose for which it was established, not continuous delivery of every service throughout its lifespan.

This functional approach is tightly linked to the historical reality described in the judgment: the same organisational body could operate distinct premises for mothers and for infants, and the separation of mothers and babies could occur as part of institutional pathways leading to fostering, boarding-out, or adoption.

3.3 Why the Minister’s approach was unlawful on the evidence

The Minister’s pleaded position was that St Joseph’s and Temple Hill could not qualify because they did not provide antenatal/postnatal care to mothers, and therefore could not satisfy “pregnancy related… care services”. Owens J. held this rested on an incorrect premise and an incomplete inquiry:

  • The Minister treated the nature of the facility (e.g., an infant nursery where mothers were not resident) as dispositive, rather than identifying the relevant “institution” and examining its founding purpose(s) in the round.
  • In Temple Hill’s case, the judgment highlighted material (notably Chapter 27 of the Commission’s final report) suggesting the relevant institutional undertaking (St Patrick’s Guild) had purposes that included assisting unmarried mothers, pregnancy-related support, and infant care/placement—raising a real question as to whether Temple Hill was part of an institution established for the composite purpose, even if mothers were not resident at that specific site.
  • In St Joseph’s case, the court noted the available material did not answer the core statutory question: when and why the institution associated with the Stamullen facility was established, and whether its institutional purposes extended beyond child-only care. The judgment stresses the inquiry should not stop at the absence of maternity services in Stamullen.

The declarations granted therefore reflect a classic judicial review outcome: the court did not substitute its own decision on eligibility for inclusion, but found that the Minister’s decision-making process misapplied the statutory test.

3.4 Limits of judicial review relief: enabling power and non-usurpation

Owens J. refused mandamus compelling the making of regulations. Two constraints were central:

  • Separation of functions: the court cannot usurp the statutory role conferred on the Minister (and the consent role of the public expenditure minister), particularly where fiscal assessment is inherent.
  • Nature of the power: s.49 is “enabling rather than a mandatory power or discretion”, so mandamus does not lie to force its exercise. The court relied on State (Sheehan) v. The Government of Ireland [1987] I.R. 550.

3.5 Precedents cited and how they shaped the analysis

(a) State (Sheehan) v. The Government of Ireland [1987] I.R. 550

This authority anchored the remedial limits of judicial review: even where an applicant has a strong grievance, mandamus generally cannot compel the exercise of an enabling discretion of this kind. Owens J. used it to explain why the proper remedy was declaratory relief (error of law), not an order forcing the Minister to legislate by regulation.

(b) McDonagh v. Chief Appeals Officer ([2021] IESC 33) [2021] I.L.R.M. 385

The applicants argued for a permissive reading of s.49(1) on the basis that the 2023 Act is remedial. Owens J. accepted the general proposition that remedial statutes are interpreted to fulfil their purpose, but treated McDonagh as an example in which purposive interpretation operated within a flexible appeals architecture—where the dispute was about whether an appeal lay, not about expanding a scheme’s defined limits.

(c) Little v. Chief Appeals Officer [2023] IESC 25

This was cited to illustrate the counterweight to remedial interpretation: social welfare and compensation schemes may contain technical eligibility boundaries that courts should not dilute by “generosity”. Owens J. used it to reinforce that purposive interpretation does not license re-writing qualifying conditions.

(d) JHG v. Residential Institutions Review Committee ([2017] IESC 69) [2018] 3 I.R. 68

The judgment drew heavily on the Supreme Court’s articulation of interpretive restraint in remedial schemes, particularly Clarke J.’s statement (quoted in McDonagh) that while narrow/technical exclusions are disfavoured, courts must respect the Oireachtas’s chosen limits. Owens J. also relied on Clarke C.J.’s warning that courts cannot extend schemes to non-scheduled institutions merely because they might deserve inclusion.

Importantly, Owens J. used JHG not to widen s.49(1), but to clarify the interpretive posture: the court would not “strain” the composite-purpose wording, yet would insist the Minister apply that wording correctly— including a realistic, functional understanding of “institution”.

3.6 Convention and constitutional arguments: why they failed here

The applicants advanced equality and ECHR-based contentions. The court rejected them primarily on procedural and jurisdictional grounds:

  • Without a constitutional challenge to s.49(1), the court proceeds on the presumption of validity and confines itself to legality of the Minister’s application of the statute.
  • The Convention is not directly part of domestic law; while s.3(1) of the European Convention on Human Rights Act 2003 requires organs of the State to act compatibly with Convention obligations, that obligation is “subject to” statutory provisions. Here, s.49(1) was treated as conferring no discretion to add institutions failing the statutory test.
  • The interpretive obligation in s.2(1) of the 2003 Act could not assist because the relevant wording was not found to bear two plausible meanings that would engage Convention compatibility.
  • Arguments referencing Articles 8 and 14 ECHR were also outside the leave granted and, in any event, premature given the Minister had not lawfully applied the first-limb test yet.

3.7 Procedural discipline: leave, evidence, and the proper scope of review

The judgment contains significant guidance on judicial review practice:

  • Applicants must plead and evidence specific irregularities; bare allegation does not shift the burden to the decision-maker (save in exceptional detention contexts).
  • Grounds cannot be expanded by submissions without amending leave; proceeding otherwise is “at peril”.
  • Notably, the Minister’s verified statements of opposition clarified that a refusal decision had been made and the reasons for it—thereby crystallising the legal issue the court could determine.

4. Complex concepts simplified

  • “Enabling” power vs duty: An enabling power authorises a Minister to act but does not compel action. Courts rarely force its exercise by mandamus.
  • Mandamus: A court order compelling a public authority to perform a legal duty. It generally fails where the statute leaves the act to discretion or policy-laden judgment.
  • Declaratory relief: A binding statement of legal position (e.g., “the Minister erred in law”) which often leads to reconsideration, without the court making the underlying decision.
  • Remedial statute: Legislation intended to provide redress/benefit. Courts interpret such statutes purposively, but still respect boundaries explicitly set by the Oireachtas.
  • Functional interpretation of “institution”: Looking at the real organisational entity (often a charitable undertaking/trust) rather than equating “institution” with one building.
  • ECHR Act 2003 interpretive rule (s.2(1)): Irish courts interpret statutes compatibly with the Convention only “in so far as is possible” and subject to ordinary interpretive rules; it is narrower than the UK’s Human Rights Act approach.

5. Impact and significance

This decision sets an important administrative-law and statutory-interpretation marker for future s.49 requests:

  • Decision-makers must identify the “institution” correctly: the inquiry cannot end with whether a particular premises housed mothers or delivered antenatal/postnatal care. Where organisational history suggests multiple linked facilities, the Minister must address whether the underlying institution was established for the composite statutory purpose.
  • Evidence-gathering expectations increase: the judgment signals that relevant material may include trust/charitable records, corporate constitutions, conveyancing records, diocesan/religious archives, and public records—because “established for the purpose of” is a historical and organisational question, not merely a description of a site’s day-to-day operations at one time.
  • Constraining effect remains: despite the functional approach, the court expressly rejected any re-writing of the composite-purpose requirement; institutions established only for infant care and placement, without pregnancy-related care within the institutional purpose, remain outside s.49(1) on the court’s reading.
  • Judicial review remedy is calibrated: applicants may secure declarations of legal error and thereby trigger lawful reconsideration, but cannot compel expansion of the Scheme by regulation.

6. Conclusion

Owens J.’s judgment draws a clear line between (i) impermissibly extending a statutory redress scheme beyond the Oireachtas’s defined limits and (ii) requiring the Minister to apply those limits lawfully. The new and practically significant principle is that the s.49(1) “institution established for the purpose of…” test demands a functional, organisational analysis: an institution may qualify even if pregnancy-related care and infant care were delivered through different facilities, and even if pregnancy-related services later ceased. The court’s remedy—declarations of legal error rather than mandamus—also reinforces orthodox restraint where the statute confers an enabling regulatory power with fiscal-consent safeguards.