Summary of Judicial Review Opinion

Factual and Procedural Background

The proceedings were judicial review applications by two individuals (together, the Applicants) challenging the decision-making of the Respondent (the Minister for Children, Equality, Disability, Integration and Youth) under s.49(1) of the Mother and Baby Institutions Payment Scheme Act 2023 (the 2023 Act). The Applicants had been resident as infants in two named facilities which the Applicants contend should be inserted by regulation into Schedule 1 of the 2023 Act so that they may qualify for payments and services under the Scheme. The Minister declined to include those facilities in Schedule 1. The Applicants sought orders compelling the Minister to make regulations under s.49(1) inserting those facilities into Schedule 1. The judgment was delivered by Judge Owens on 16 February 2026.

This opinion addresses whether the Respondent applied the law correctly in assessing whether the two facilities met the qualifying criteria in s.49(1) of the 2023 Act so as to allow their inclusion in column 2 of Part 1 or Part 2 of Schedule 1.

Legal Issues Presented

1. Whether the Respondent applied the first limb of the s.49(1) test correctly in identifying whether each institution was "an institution which was established for the purpose of providing pregnancy related and infant care services and the placement of children for the purposes of adoption or care arrangements."
2. Whether the Minister's understanding that an institution must have provided antenatal or postnatal care to mothers at the facility in question was consistent with the correct interpretation of the first limb of s.49(1).
3. Whether mandamus or other remedies could be used to compel the Minister to exercise the discretion conferred by s.49(1) to insert institutions into Schedule 1.

Arguments of the Parties

Applicants' Arguments

• The Applicants contended that the Minister had arbitrarily excluded the two facilities from Schedule 1 and had failed to apply the statutory test in s.49(1).
• They submitted that the 2023 Act is remedial and that s.49(1) should receive a permissive/purposive interpretation to permit inclusion of institutions meeting the Act's remedial purpose.
• They alleged unfairness and unequal treatment arising from omission of the facilities from Schedule 1.

Respondent's Arguments

• The Respondent argued that s.49(1) requires an institution to have been established for the composite purpose described (pregnancy related and infant care services and placement for adoption/care) and that the two facilities could not meet that first limb because they did not provide antenatal or postnatal care to mothers at those facilities.
• The Respondent maintained that the power in s.49(1) is enabling rather than mandatory and that mandamus cannot compel exercise of that enabling discretion.
• The Respondent relied on findings and assessments by the Inter-Departmental Group and the Commission, which had described one facility as a nursery where mothers were not resident and the other as an adoption society with a connected baby home, to justify non-inclusion.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Owens identified the statutory "test" in s.49(1): an 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, and be subject to a public body's regulatory or inspection function. The litigation concentrated on the first limb—identifying the institution and the purpose for which it was established.

The court examined whether the Minister had applied that first limb when declining to exercise s.49(1). The evidence showed the Minister had relied on findings by an Inter-Departmental Group and the Commission that the two facilities did not operate as mother-and-baby homes because mothers were not resident or antenatal/postnatal services were not provided at the facilities. Judge Owens held that those antecedent views were not determinative of the statutory test: the Inter-Departmental Group and the Commission were not tasked with applying s.49(1) and their conclusions on "mother and baby homes" did not displace the Minister's obligation to apply the statutory test.

The court adopted a functional and purposive interpretation of "institution which was established for the purpose of providing pregnancy related and infant care services and the placement of children…". The term "institution" should be understood by reference to functional and organisational characteristics; a single charitable institution might operate different facilities (e.g. one providing maternity care and another providing infant care) and that division of facilities does not necessarily preclude the wider institution from satisfying the s.49(1) test. The court held that the statutory wording requires a composite purpose (the listed elements joined by "and") and that "pregnancy related and infant care services" should be read as referring to a care component in relation to both pregnancy-related services and infant care.

Applying these interpretive principles, the court found that the Minister had misinterpreted an aspect of the test by treating non-provision of antenatal/postnatal care at the specific facility as dispositive. The Minister had not applied the first limb to the institutions associated with the two facilities; the Minister should have sought and considered relevant information about the purposes for which the overarching institutions had been established, including archival, company, trust or other records.

The court also addressed remedies and standing: the Applicants had sufficient interest to challenge the Minister's decision not to exercise s.49(1) and sought appropriate declaratory relief, but the court could not substitute its own legislative function or order the Minister to make a regulation (mandamus was inappropriate for an enabling discretion).

Holding and Implications

Holding: The court declared that the Respondent erred in law in evaluating whether the institutions associated with the two contested facilities satisfied the first limb of s.49(1) of the 2023 Act. Specifically, the Respondent did not apply the first limb of the statutory test to those institutions and misinterpreted the relevance of whether antenatal or postnatal care was provided at the specific facilities.

Implications:

• The court will grant declaratory relief to that effect and will list outstanding procedural matters for disposal.
• The decision does not order the Respondent to make regulations inserting the facilities into Schedule 1 (the court cannot compel exercise of the enabling discretion), but it requires the Respondent to apply the statutory test correctly to the available and obtainable material before exercising s.49(1).
• No new constitutional or Convention-based precedent was determined; the court declined to adjudicate Convention or constitutional challenges not pleaded within the leave granted.