Kiernan [Otherwise John Duncan Morris] v Minister For Children, Equality, Disability, Integration and Youth, Thornton v Minister For Children, Equality, Disability, Integration and Youth

JUDICIAL REVIEW [2026] IEHC 258 [2024 No. 881 JR] Between/ JOHN KIERNAN OTHERWISE JOHN DUNCAN MORRIS Applicant -AND- MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH Respondent JUDICIAL REVIEW [2024 No. 1251 JR] Between/ MARIE THORNTON Applicant -AND- MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH Respondent JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 16th day of February 2026. 1. The only issue which I can properly entertain in these two applications for judicial review is that of whether the Minister for Children, Equality, Disability, Integration and Youth (the Minister) applied the law correctly in evaluating whether or not she could make a regulation under s.49(1) of the Mother and Baby Institutions Payment Scheme Act 2023 (the 2023 Act) adding institutions which operated facilities known as St Joseph’s Baby Home in Stamullen, County Meath (St Joseph’s) and Temple Hill Hospital (Temple Hill) in Blackrock, County Dublin into the list of institutions in column 2 of Part 1 or column 2 of Part 2 of Schedule 1 of that Act. 2. The Minister may only make a regulation in exercise of the power conferred by s.49(1) of the 2023 Act in respect of an institution which meets qualifying criteria specified in that provision. The first issue which the Minister was required to examine in deciding whether St Joseph’s or Temple Hill could meet the criteria was whether she had sufficient information to allow her to conclude that each 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, and in respect of which a public body had a regulatory or inspection function.” This is (the test) and these are (the relevant words). 3. This litigation is concerned with the first limb of the test. The second limb of the test is whether the institution in question was “an institution… in respect of which a public body had a regulatory or inspection function.” 4. The first limb of the test requires the Minister to identify the “institution,” and to ascertain “the purpose” for which that “institution” “was established.” 5. The evidence establishes that the Minister did not apply the first limb of the test when she decided that she was precluded from making a regulation including St Joseph’s and Temple Hill in Schedule 1 of the 2023 Act. 6. John Kiernan and Marie Thornton were put into St Joseph’s and Temple Hill when they were babies. They seek orders compelling the Minister to make a regulation adding St Joseph’s and Temple Hill into Schedule 1 of the 2023 Act. If the Minister makes this regulation they will qualify to apply for payments and other benefits under the Mother and Baby Institution Payment Scheme (the Scheme) established by that Act. Applicants for benefits under the Scheme must show a minimum period of qualifying residence in a Schedule 1 institution. 7. In March 2024 solicitors for John Kiernan and Marie Thornton corresponded with the then Minister on behalf of a number of their clients. They requested that he exercise power under s.49(1) of the 2023 Act by including the institutions associated with five named baby homes in Schedule 1 to the 2023 Act. They claimed that that these institutions were arbitrarily excluded from the scheme. 8. These solicitors previously corresponded with the Minister on behalf of a number of their clients. They complained that St Joseph’s and Temple Hill had been “excluded” from the list of “relevant institutions” specified in Schedule 1 of Mother and Baby Institutions Payment Scheme Bill. 9. The reason for this was that the “powers that be” decided that the facilities at St Joseph’s and Temple Hill lacked the “mother” component or a “mother and baby” home. They decided not to include residents of St Josephs and Temple Hill in the proposed statutory redress scheme for this reason. Schedule 1 to the 2023 Act did not include St Joseph’s and Temple Hill. 10. John Kiernan also corresponded with the Minister after the 2023 Act became law. a letter date 3 November 2023 advised him of the position in the following terms: “the legislation provides for the Minister to insert an additional institution in Schedule 2 (sic) of a Mother and Baby Institution. If it were to come to light that an institution fulfilled a function with regard to single women and their children as the 14 Mother and Baby institutions and the State had a regulatory or inspection function, then such an institution could be added to the Schedule and covered by the Scheme. For institutions which provided different services to those described above, it would be more accurate to say that they are not the target of the Scheme, rather than being excluded from it.” 11. By letters dated 13 May 2024 and 17 June 2024, the solicitors for John Kiernan and Marie Thornton called on the Minister to exercise her power under s.49(1) of the 2023 Act to make a regulation including St Joseph’s and Temple Hill in Schedule 1. This letter repeated their assertion that they had been arbitrarily excluded from redress under the 2023 Act. These letters were not replied to. 12. John Kiernan and Marie Thornton then instituted these proceedings, seeking judicial review. They ask me to instruct the Minister to make a regulation under s.49(1) of the 2023 Act including St Joseph’s and Temple Hill in Schedule 1. 13. I cannot do that. I cannot usurp a public function which the 2023 Act has entrusted to the Minister. I have a very limited role and cannot usurp the functions entrusted by s.49 of the 2023 Act to the Minister and to the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation. The latter Minister must approve any regulation inserting an institution into Schedule 1 to the 2023 Act. The reason for this is that any proposal to make a regulation would require an assessment of the likely impact on public finances. 14. In essence, s.49 of the 2023 Act is an “enabling rather than a mandatory power or discretion”. The public law remedy of mandamus does not lie to force the Minister to exercise this type of discretion: see State (Sheehan) v. The Government of Ireland [1987] I.R. 550, per Henchy J. at 561 and 562. 15. The evidence adduced by John Kiernan and Marie Thornton shows that they have sufficient interest to challenge the Minister, if she has rejected St Joseph’s and Temple Hill as ineligible for inclusion in Schedule 1 to the 2023 Act and they can demonstrate that in doing so she failed to apply the test. 16. These proceedings took an unusual course. At the time when they were commenced, John Kiernan and Marie Thornton did not know whether the Minister had considered their further requests to include St. Joseph’s and Temple Hill in Schedule 1. They knew that she was of the view that St Joseph’s and Temple Hill could not come within the Scheme. 17. The grounds advanced in these applications for judicial review and the reliefs sought are vague. Their statements of grounds identified s.49(1) of the 2023 Act as governing whether St Joseph’s and Temple Hill could be inserted by regulation into the list of institutions in Schedule 1. 18. The focus of their judicial review challenge is a complaint of unfairness and unequal treatment. They said that this arose because 2023 Act omitted St Josephs and Temple Hill from Schedule 1. They said that they should be within the intention of the 2023 Act, which was to acknowledge and give redress to children who were placed in baby homes and that the Minister acted arbitrarily and made a policy decision not to use s.49(1) of that Act to give them redress. 19. Was there reason to think that the Scheme was intended to preclude a person who was in a baby home virtually from birth from receiving benefit merely because mothers were not also cared for in that facility prior to, or after childbirth? 20. There appears to be a widespread misconception that an assertion that a public body has acted improperly in a statement of grounds or supporting affidavit in judicial review proceedings suffices to impose an obligation on that body to establish at the substantive hearing that the decision being challenged was taken regularly. This does not represent the law, except in cases where the High Court directs that a detaining authority justify the legality of the deprivation of a person’s liberty. 21. In judicial review proceedings, an applicant who alleges that a decision-maker has acted irregularly must identify the irregularity complained of and provide evidence to prove the claim. 22. If the hearing of these applications had proceeded solely on the basis of evidence presented in the affidavits supporting the grounds advanced by John Kiernan and Marie Thornton, they might have failed for want of evidence that the Minister misapplied the test. 23. The Minister stuck her head above the parapet. When she put in her statements of opposition to these applications for judicial review, it emerged that she had decided not to make a regulation under s.49(1) of the 2023 Act including St Joseph’s and Temple Hill in Schedule 1 of that Act. She chose to file and verify statements of opposition which explained why she refused to include St Joseph’s and Temple Hill in Schedule 1 of the 2023 Act. 24. Her explanation was that she: “outlined the reasons that the institutions listed in Schedule 1 of the Act were included and the basis on which she has not to date exercised the power pursuant to section 49(1) of the Act to insert (St Joseph’s) (Temple Hill) or any other institution into Schedule 1 of the Act, which include” that she, being the “the Respondent and/or the Interdepartmental Group on Mother and Baby Homes and/or the Commission of Investigation into Mother and Baby Homes and certain related matters have established and/or determined that (St Joseph’s)(Temple Hill) could not be classified as a Mother and Baby Home on the basis that it was an institution in which only children (as opposed to children and their unmarried mothers) spent time and/or because it did not provide ante-natal or post-natal care; and/or (St Joseph’s/Temple Hill) does not satisfy the criteria provided for in section 49(1) of the Act.” 25. There also appears to be a misconception that new grounds of challenge for which leave has not been granted can be advanced in legal submissions in applications for judicial review.. Those who seek to argue different grounds and decide to proceed without first obtaining an order giving leave to amend their grounds of challenge do so at their peril. I cannot entertain any grounds or claims which are not founded in the orders of the High Court granting leave. 26. The right of John Kiernan and Marie Thornton to raise an issue of whether the Minister correctly applied the test was not disputed by the Minister at the hearing of these applications. Instead, the Minister pointed to the terms of s.49(1) of the 2023 Act. She sought to frame the debate on that issue as dependent on whether the interpretation of the relevant words which she advanced to me is correct. 27. The Minister argued that it was not enough that St Joseph’s and Temple Hill met the requirements of being an “institution which was established for the purpose of… infant care services and the placement of children for the purposes of adoption or care arrangements, and in respect of which a public body had a regulatory or inspection function.” 28. She took her stand on the proposition that St Joseph’s and Temple Hill could not come within s.49(1) because neither was an “institution which was established for the purpose of providing pregnancy related…care services”. The facilities at St Joseph’s and Temple Hill did not provide antenatal or postnatal care services to mothers. As far as she was concerned, this meant that St Joseph’s and Temple Hill could not meet first limb of the test. 29. The soundness of the proposition advanced by the Minister depended both on her interpretation of the relevant words and on an underlying premise being correct. 30. That premise was that the “institutions” associated with St Joseph’s and Temple Hill could not meet a requirement of the first limb of the test because those facilities did not provide antenatal and postnatal care services to mothers. 31. John Kiernan and Marie Thornton disagreed with the Minister’s interpretation of the relevant words. They contended that as the 2023 Act is a remedial statute, s.49(1) should receive a permissive interpretation. 32. But was the Minister correct in concluding that she was unable to exercise the power conferred by s.49(1) of the 2023 Act in respect of St Joseph’s and Temple Hill because those facilities could not satisfy the test, as she understood it? 33. The validity of that conclusion depended on whether the Minister carried out the assessment mandated by the test. Did she find and consider all of the relevant material? Did she understand and apply the “nuts and bolts” of the test to that material? 34. I am prepared to entertain the issue which arises as a result of this response by the Minister because it just about engages in grounds [1] and [3] in para. E of the statements of the grounds on which John Kiernan and Marie Thornton were given leave to apply for judicial review. This, as I understand it, was the main focus of the replying submission on behalf of John Kiernan and Marie Thornton. They submitted that the Minister failed to properly consider whether St Joseph’s and Temple Hill could satisfy the test. 35. The evidence establishes that the Minister has misinterpreted one aspect of the test. If an institution was established for a purpose of providing pregnancy related and infant care services, the fact that it provided those services in different facilities would not be decisive; nor would it matter that the institution at some point discontinued providing pregnancy related care services. 36. I propose to make declarations that the Minister erred in law in evaluating whether St Joseph’s and Temple Hill were institutions established for the purpose set out in the relevant words. She did not apply the first limb to the test to St Joseph’s and Temple Hill. 37. I cannot entertain any of the other claims made by John Kiernan and Marie Thornton for declaratory orders or other remedies. This includes remedies sought in legal submissions which attempted to widen the scope of their challenge beyond that for which they obtained leave to seek judicial review. 38. Their claims for declarations that by declining to exercise power under s.49(1) of the 2023 Act in respect of St Joseph’s and Temple Hill on grounds that they were not held equal before the law, as required by Article 40.1 of the Constitution of Ireland, or that the Minister was in breach of fundamental rights guaranteed to them by the European Convention on Human Rights and Fundamental Freedoms or Protocols thereto (the Convention) are misconceived. 39. The Convention is not part of the domestic law of the State. Section 3(1) of the European Convention on Human Rights Act 2003 (the 2003 Act) provides that: “subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention Provisions.” Section 49 of the 2023 Act sets out the Minister’s function. The relevant words do not confer any discretion on the Minister. The Minister must not insert any institution which does not satisfy the test into Schedule 1. 40. Absent any challenge to the constitutionality of s.49(1) of the 2023 Act on grounds of failure to guarantee equality to John Kiernan and Marie Thornton before the law, I can only entertain issues of whether the Minister acted or is acting otherwise in accordance with law, on the assumption that this provision is valid. In exercising her function under s.49(1) of the 2023 Act the Minister is obliged to apply the law as she finds it. 41. Absent a claim under s.5(1) of the 2003 Act for a declaration that the test is incompatible with the Convention, I cannot entertain that issue either. The points advanced by John Kiernan and Marie Thornton in legal submissions which refer to Articles 8 and 14 of the Convention are not within the grounds on which leave to seek judicial review has been granted to them. 42. It would not be proper for me to exercise my residual jurisdiction to entertain this claim and consider whether the test is incompatible with any provision of the Convention. 43. The possible implications of Articles 8 and 14 of the Convention were not explored in the applications before me. In particular, there was insufficient evidence to establish that John Kiernan or Marie Thornton would suffer unlawful discrimination as a result of refusal by the Minister to include St Joseph’s and Temple Hill in Schedule 1 of the 2023 Act in the event of failure of those institutions to meet the requirements of the first limb of the test. That issue could only be canvassed in the context of the overall provisions of s.49 of the 2023 Act. The provisions of s.49(3), and the requirement in s.49(1) that the Minister, not merely consult with but get the consent of the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation , Would be relevant to any such consideration. 44. Furthermore, light of my conclusion that the Minister has not to date applied the first limb the test to St Joseph’s and Temple Hill, any consideration by me of this issue would be premature. 45. I will now explain in greater detail how I have arrived at my conclusions on the meaning and effect of the relevant words and why I have concluded that the Minister failed to apply the first limb of the test when she decided that St Josephs and Temple Hill could not satisfy the test. 46. I indicated during the hearing of these applications, that as the final report of the Commission is available to the public, I intended to read the full report; not just the extracts exhibited or referred to by an official who submitted affidavits on behalf of the Minister. That official omitted to exhibit Chapter 27 of the final report of the Commission. This provides important information relating to Temple Hill. 47. In 2014 an Inter-Departmental Group on Mother and Baby Homes (the Inter-Departmental Group) was established within the civil service in response to public concern regarding the poor conditions experienced by those who ended up in mother and baby homes in the State during the last Century. 48. The events which led to this concern are well-documented. In the early twentieth century pregnant unmarried girls in Ireland were packed off by their families, or forced by economic or social circumstances, into either the county homes or mother and baby homes to await the birth of their children. Many unmarried mothers and their children remained in those institutions for prolonged periods. The mothers, who could not leave without taking their children with them because they were responsible for their upkeep, were put to menial work. The children were kept in those institutions until they could be boarded-out, fostered, adopted informally, or sent abroad for adoption. Many of these children ended up in other institutions, such as industrial schools. The Adoption Act 1952 introduced legally recognised adoption. 49. Chapter 3 of Volume 4 of the report of the Commission to Inquire into Child Abuse (the CICA report) described “Other institutions for children in care” in the State from its foundation; meaning institutions which were not industrial schools. Prior to and after independence, the only public institutions which could receive unmarried mothers and their babies were workhouses, and thereafter, county homes. In 1923 one workhouse in each county other than Dublin was designated as a “county home” and the others were closed. In 1926 there were over a thousand unmarried mothers with their babies in county homes: see paras. 3.44 and 3.45 of the Vol. 4 of the CICA report. 50. The social context in which “mother and baby Homes” came to be established, was explained in paras. 3.46 and 3.47 of Vol.4 of the CICA report as follows: “3.46 The undesirability of having mothers and their infants in the county homes was recognised and in the 1920s and 30s the policy was implemented of providing ‘mother and baby’ homes for unmarried women who were having children for the first time. These were reserved for young mothers who had ‘fallen’ once only and thus were likely to be ‘influenced towards a useful and respectable life (leaving those unmarried mothers pregnant for the second or later time to the county homes) … 3.47 The usual practice in a county home or mother and baby home was for the mother and her child to remain for one or two years, while the mother carried out domestic labour working to pay off their keep and (possibly) to make another lapse unlikely. After that period the child was boarded out; or adopted (informally or when the Adoption Act 1952 came into force, legally) or sent to a junior Industrial School.” 51. Footnote 27, of para. 3.46 of the CICA report states that the Sacred Heart Order of Sisters established the mother and baby homes in Bessborough, Roscrea and Castlepollard in 1922, 1930 and 1935, respectively. The Sisters of Charity opened a home on the Navan Road in 1918 and the Sisters of the Good Shepherd opened a home in Dunboyne in 1955. Three homes were opened by local authorities at Kilrush, County Clare, Roscrea, County Tipperary and Tuam, County Galway. These facilities were put under the management of Roman Catholic religious orders. A mother and baby facility was established in Pelletstown, County Dublin, in premises originally operated by one of the Dublin Poor Law Union. 52. The Inter-Departmental Group was asked to prepare a report for the Government, which would inform the content of the terms of reference for a proposed commission of investigation into how those homes operated. The Group issued a report in July 2014. That report identified a core cohort of nine Homes as having what it considered the features of a mother and baby home, namely a home which provided antenatal care to expectant mothers and residence for both mother and baby after birth. That cohort included all of the homes listed in the footnote to para. 3.46 of Vol.4 of the CICA report. 53. The Inter-Departmental Group concluded that St Joseph’s was not a mother and baby home.” It pointed out that the facility in Stamullen was not listed in academic literature referring to mother and baby homes. Much of the information about St Joseph’s which is set out later in this judgment has been taken from pages 11 and 12 of the report of the Inter-Departmental Group. The interdepartmental Group referred to St Gerard’s on page 11 of its report. The sources of its information about St Gerard’s are set out in footnote x at p.35. 54. Following resolutions of the Houses of the Oireachtas, The Commission of Investigation (Mother and Baby Homes and certain related Matters) Order 2015 (S.I. No. 57/2015) established the Commission and determined its terms of reference (the Commission terms of reference). As is clear from para. 1 of the Commission terms of reference, the matters to be inquired into related to the homes listed in Appendix 1 to those terms of reference. 55. The homes listed in Appendix 1 to the Commission terms of reference included the homes at Bessborough, Castlepollard and Dunboyne. 56. “St. Gerard’s, originally 39, Mountjoy Square, Dublin 1” was also listed in appendix 1. St Gerard’s was part of St Patrick’s Guild. St Patrick’s Guild was a charity. It operated a mother and baby home located at 39 Mountjoy Square, Dublin 1. In 1938 this facility was moved to a house at Herbert Avenue, off the Merrion Road. It was then called St Gerards. This mother and baby home was closed shortly after it relocated. 57. St Gerard’s is listed in Column 2 of Part 2 of Schedule 1 of the 2023 Act at Reference No. 12 in Column 1. The “Concluding year” for St Gerard’s, in Column 3 of Part 2 of Schedule 1, is 1939. The reason for this is that St Gerard’s closed in 1939. 58. The 2023 Act does not extend the statutory scheme to babies transferred by St Patrick’s Guild from its facilities at Mountjoy Square and Herbert Avenue to its facility at Temple Hill. Temple Hill was opened in 1930. In the period between 1930 and 1939 mothers and their children were resident in Mountjoy Square or St Gerard’s. During that period some of the babies were moved from Mountjoy Square to Temple Hill. Children who had been boarded-out were taken back into Temple Hill if they were in poor health. Prior to 1930 the services provided at Temple Hill were provided at 39 Mountjoy Square. 59. The homes listed or referred to in Appendix 1 to the Commission terms of reference also included the county homes. The Commission was directed to examine how the county homes dealt with pregnant women and their children, by selecting and studying a representative sample. 60. Paragraph (1)(VI) of the terms of reference obliged the Commission “To examine arrangements for the entry of children into these institutions in circumstances when their mother was not also resident at the time of their entry”. Paragraph (11) of those terms of reference obliged the Commission to include in its methodology an “academic social history module to establish an objective and comprehensive historical analysis of significant matters” as an analysis to inform its investigations. 61. The Commission was obliged to set out in detail in that analysis: “D. The types of institutional settings (e.g. mother and baby homes, county homes, private nursing homes, homes for infants or children) where single women and their children, or other children, were accommodated; E. The role and significance of different types of institution and their inter- relationships; F. Organisational arrangements for the management and operation of these different types of institutions; … I. The typical pathways experienced by single women and their children on leaving the different types of such institutions including the role played by other institutions (e.g. adoption societies, homes for infants or children and Magdalen laundries)”. 62. The Commission issued its final report on 12 January 2021. This report shows that following the enactment of the Adoption Act 1952 some of the bodies referred to in Appendix 1 of the Commission terms of reference became registered adoption societies. This is not surprising. That Act made it compulsory for bodies which organised legal adoptions to register as adoption societies. The final report of the Commission shows that some of the homes referred to in Appendix 1 also took-in babies or very young children who were not accompanied by their mothers. Regina Coeli Hostel took in pregnant mothers but did not provide maternity medical services to them. 63. The Commission did not investigate what it described as “Residential Children’s Homes” referred to in paras. 2.22 to 2.25 of its report. St Joseph’s is listed at para. 2.25. The Commission at para. 2.43 of its report The Commission referred to Temple Hill as follows: “St Patrick’s Infant Hospital, Temple Hill, sometimes called Temple Hill Dietetic Hospital), Blackrock, is frequently wrongly described as a mother and baby home. It was an infant’s nursery and mothers were not resident there. As a hospital it received funding from the Hospitals Commission (see Chapter 27).” 64. The final report of the Commission, in line with the Commission terms of reference, concentrated on the institutions scheduled in Appendix 1. In its second interim report Commission expressed a view that, apart from the homes identified in the Commission terms of reference, other mother and baby homes may have operated in the State. 65. Following the final report of the Commission, the Government established another inter- departmental group of civil servants (the Scheme Group). The Scheme Group was charged with making recommendations which would lead to the formulation of a statutory redress scheme. The Scheme Group recommended that “the initial Scheme is confined to those institutions which were covered by the Commission’s remit”. 66. The 2023 Act was enacted on 11 July 2023. The long title of that Act expresses its purpose is “to provide, in recognition of the circumstances experienced by certain persons while resident in certain institutions in the State, for the establishment of a scheme to be known as the Mother and Baby Institutions Payment Scheme for the purpose of the making of payments and the making available without charge of health services to such persons; to provide for the making by such persons of applications for such payments and services; and to provide for related matters” 67. John Kiernan was born in January 1967 in the Bessborough Mother and Baby Home in Cork. This institution is listed in column 2 of Part 2 of Schedule 1 of the 2023 Act at Reference No.2 in column 1 of Part 1 that Schedule. He remained in the Bessborough Home until April 1967. He was then moved to St. Joseph’s where he remained until 1972. He was then transferred to St. Mary’s House in Baldoyle where he remained for a further two years. He was then placed with foster parents. At the age of 16 he was moved to the Los Angeles Society Homes for Homeless Boys. 68. Marie Thornton was born in June 1954. It is not clear where she was born. She was admitted to Temple Hill a week after she was born. She remained in Temple Hill until 27 May 1955. It is not clear where she went then. She was “returned” to “Temple Hill” on 1 March 1956 and remained there until 13 August 1956. It appears that “St Patrick’s Hospital” and what she refers to as “Temple Hill” were the same institution. I assume Marie Thornton was then adopted from Temple Hill through the aegis of St Patrick’s Guild, which was registered as an adoption society under the 1952 Act. I have not been supplied with evidence on that. 69. John Kiernan and Marie Thornton complain that they were treated poorly while they were in St Joseph’s and Temple Hill. They have not provided any information relating St Joseph’s and Temple Hill. Such information as is available to me relation to these entities has been provided in exhibits to affidavits sworn on behalf of the Minister and in the final report of the Commission. 70. It emerged from enquiries by the Inter-Departmental Group re that two activities were conducted in or from a facility which was run by the Franciscan Sisters of St Clare at Stamullen. St. Clare’s adoption society was a registered adoption society run by that Order, under the chairmanship of the parish priest of Castlepollard. The Franciscan Sisters of St Clare also operated a babies’ home in Stamullen. This was called St Clare’s or St Joseph’s. No information has been provided on when St Joseph’s was founded or the purposes for which it was established. 71. The Inter-Departmental Group contacted with the Child and Family Agency in relation to St Clare’s. That Agency had “the records” and it confirmed that “St Clare’s” was an adoption society and not a residential unit for mothers and babies. This reference to “the records” in this context appears to relate to the activities of the adoption society. There was a baby home connected called St Joseph’s. There was also linkage between St Clare’s Adoption society and the Mother and Baby Homes in Dunboyne and Castlepollard. 72. An affidavit filed on behalf the Minister quoted an email from the Child and Family agency which provided the following information relating to St Clare’s: “St Clares was an Adoption Society. It was not a residential unit for mothers or babies. There was a baby home connected to it called St Josephs. A lot of babies that were placed in St Josephs were adopted through St Clares but not all. St Clares also processed adoptions from other areas. A lot of mothers who placed their babies through St Clares would have stayed at Ard Mhuire Dunboyne…or Castle pollard. However some mothers contacted the Society privately.” This suggests that part of the intake of babies, infants or children into St Joseph’s may have come from the homes at Dunboyne and Castlepollard. 73. The Castlepollard mother and baby home was a separate institution, operated by The Sacred Heart Order. The Dunboyne mother and baby home was also a separate institution, operated by the Sisters of the Good Shepherd. Manor House in Castlepollard and Árd Mhuire in Dunboyne and are listed in column 2 of Part 2 of Schedule 1 to the 2023 Act. Column 3 of Part 2 of Schedule 1 gives their “Concluding year[s]” as 1971 and 1991, respectively. 74. A facility called St Clare’s, Stamullen was described in an internal Department of Health memorandum in 1986. This document is exhibited at JT 2 to the affidavit filed by the Minister in Marie Thornton’s application for judicial review. Paragraph 5.3 of that memorandum states as follows: “St Clare’s Stamullen, Co. Meath - Admissions are usually infants with a non-accidental injury or physical or mental problem. It has a capacity for 60. The length of stay, which is usually around six months, depends on the individual needs of the child. The children are then discharged to a residential home or foster home. The staffing again consists of nurses and trainee nursery nurses.” 75. No births were recorded as taking place at St Clare’s. St Clare’s was not registered under the Registration of Maternity Homes Act 1934. It is not disclosed whether St Joseph’s was registered, but this seems unlikely, given that registration under that Act related to the premises in which maternity services were offered. The available material does not suggest that maternity services were provided in the facility at Stamullen. 76. St Joseph’s appears in a list of what are described as “Residential Children’s Homes” in Chapter 2 of the final report of the Commission. In 1982 St Joseph’s appeared in a list of homes receiving State subvention. 77. The available information does not suggest that the Child and Family Agency held records touching on the purpose for which St Joseph’s was established or was asked by the Inter- Departmental group for information on that. No information is provided on when St Joseph’s was established. 78. The documents exhibited do not indicate that the Franciscan Sisters of St Clare were approached with a view to ascertaining from their archives why they established St Joseph’s, who endowed it, when it was established or what its charitable purposes were. No information is provided as to whether the Sisters of St Clare provided accommodation or other care to unmarried pregnant women or unmarried mothers or at a separate facility, or by other means. 79. The archives or records of that Order, or of the Diocese of Meath, or of the Commissioners for Charitable Donations and Bequests may contain information which sheds light on the purposes for which the facility at Stamullen was established and held on trust. 80. The information provided by John Kiernan shows that as of 1967 St Joseph’s was receiving very young children from other institutions such as, in his case, Bessborough Mother and Baby Home in Cork. John Kiernan was resident in St Joseph’s for a much longer period than the duration of average stay of infants as noted in the 1986 Memorandum. As of 1971 the mother and baby home in Castlepollard was closed. 81. Apart from this limited material, no information available on how or why babies ended up in St Joseph’s or where they came from or what became of their mothers. It is not clear whether, during any period of its operation, children sent to St Joseph’s were paid for by their families, or whether their mothers were required live and work elsewhere. 82. Temple Hill was described in para. 2.43 of Chapter 2 of the final report of the Commission as an infant nursery in which their mothers were not resident. As Temple Hill claimed to be a hospital, it received funding from the Hospitals Commission. St. Patrick’s Guild (the Guild) set up this facility in 1930. It appears that the Guild’s facility in Mountjoy Square was sometimes referred to as “St Patrick’s”. 83. The Hospitals Commission made payments to cover deficits and as grants for Temple Hill between 1933 and 1940. Para. 27.15 of the final report of the Commission suggests that this money was paid because the Hospitals Commission was under an erroneous impression that the Guild’s Abbey Street facility operated as the outpatient department of a hospital at Temple Hill. These payments were stopped because the work of the Guild could not be described as hospital activity. Temple Hill, while called “St Patrick’s Dietetic Hospital and Convalescent Home”, was not a hospital. 84. Chapter 27 of the final report of the Commission explains the evolution of the Guild. This institution was founded in the early 1910s by Mary Josephine Cruice. Its purpose was to assist Catholic unwed mothers and their children. The Guild was a charitable institution and it follows that its premises and undertaking were held by trustees for its charitable purposes. 85. Initially the Guild had premises in Abbey Street. These were acquired in 1914. According to the Department of Public Health and Local Government the aims of the Guild were: “to provide spiritually and temporally for destitute children by securing their admission into existing institutions, or by boarding them out in the homes of respectable families or by providing and maintaining a home or homes for these purposes or by other methods; to provide attendance and necessaries for women who were expectant mothers and whose circumstances called for such assistance and to provide during convalescence for the mother and child; to provide training of probationers in infant welfare work and in nursing.” 86. These purposes of the Guild, as established, therefore included “the purpose of providing pregnancy related and infant care services and the placement of children for the purposes of …care arrangements”. These infant care services included the so-called “hospital” at Mountjoy Square which also trained children’s nurses. 87. From 1920 the Guild operated a mother and baby home with maternity facilities from its facility at Mountjoy Square. No births were recorded at that location between 1920 and 1932. Forty-five babies were born there between 1933 and 1938. The Guild charged parents and families of children placed with it until their accounts were cleared. 88. An unlimited company called St Patrick’s Guild (Incorporated) (the Company) was incorporated in 1926. Mary Josephine Cruice was one of the founding subscribers. The current main object of the Company, as set out in its constituent document, as last amended in April 2017, is to assist children who were placed for adoption or fostering through or by the Guild and their birth parents to be reunited. It is likely that the company previously had main objects which were more in line with the purpose for which the Guild was founded. 89. The preamble to the current version of the constitution of the Company, assuming that it has not been dissolved, states as follows: “St Patrick’s Guild (the “Guild”) was founded in 1910 by Miss Mary Josephine Cruice. Concerned about the lack of organisations prepared to assist the Catholic unwed mother and her child, she, along with a small committee which supported her, set about the establishment of the Guild. The founding vision for the organisation was hers. In 1943, Miss Cruice was in failing health and she requested Dr. J.C. McQuaid, who was then Archbishop of Dublin, to provide for the future of the Guild. This he did by entrusting it to the care of the Religious Sisters of Charity. St Patrick’s Infant Hospital formed a part of the service offered by the Guild Founded in 1919 at 39 Mountjoy square, the hospital was transferred to Temple Hill, Blackrock in 1930. This hospital provided nursery and, when necessary, medical care to children prior to their placement. This hospital also offered a training course for Nursery Nurses. The Hospital was closed in 1986. Following the introduction of adoption legislation in Ireland in 1952, the Guild applied for and obtained recognition and approval as a registered adoption society. It still retains that status.” 90. This suggests that children born in Mountjoy Square, or whose mothers were received into 39 Mountjoy Square, were transferred by the Guild during their infancy to Temple Hill prior to placement for fostering or adoption. 91. Earlier iterations of the memorandum and articles of association of the company and the dates of changes to its constitution should be available from the Companies Registration Office or the National Archives. These may cast light on the purpose of the underlying charity. 92. Information held by these bodies may also cast light on changes in control of the membership and management of the company at a later stage between 1941 and 1943, when the affairs of the Guild were given over to the Archbishop to sort out and he placed it in the hands of the Sisters of Charity. Memorials of any registered deeds associated with any assurances of Mountjoy Square and Temple Hill, to or from the Company, should be readily available from the Registry of Deeds. 93. It is likely that the Company was originally formed as a trustee to hold property on trust for the purposes of the Guild, and, possibly, as a vehicle to manage its activities. The Guild’s facility at Temple Hill was opened some four years after the company was incorporated. 94. The Company may have been used as a vehicle to acquire and hold Temple Hill on trust for the charitable purposes of the Guild. If so, Temple Hill would have been held by the Company as trustee for the charitable purposes of the Guild. 95. The Guild premises at Mountjoy Square and Abbey Street may also have been transferred to the Company. If this happened, the likely method used would have been a conveyance or assignment from the existing trustees containing a recital that the Mountjoy Square and Abbey Street properties held by them on trust for the company and that the company had called on them to execute an assurance of those properties to it. 96. Paragraph 27.12 of the final report of the Commission states that children boarded out by the Guild “who became delicate” and babies from Mountjoy Square were transferred to Temple Hill. This information suggests that Temple Hill was a facility of the Guild which was held on trust for the same charitable purposes as the facility at Mountjoy Square. The preamble to the constitution of the company, adopted in 2017, shows that prior to 1930 these children were looked after in “the hospital” at 39 Mountjoy Square. 97. In 1937 the Guild applied to the Hospitals Trust for a grant to buy a house on Merrion Road for use as a “Children’s Dietetic and Convalescent Home and Nurses Training College.” The Hospitals Trust recommended that this house be acquired by the Guild for use as a maternity home for unmarried mothers on the understanding that the premises on Mountjoy Square would be sold. 98. In 1938 the Guild acquired a building on a large site at Herbert Avenue, off the Merrion Road and the facility operated at Mountjoy Square was moved to that location. This was called St Gerard’s. By late 1939 the Guild had closed its mother and baby home at St Gerard’s. The transition from Mountjoy Square to St Gerard’s appears to have been a failure. Members of the committee of the Guild were in dispute about the operation of St Gerard’s. 99. In 2022 the Child and Family Agency compiled a Report on the Guild, St Gerard’s and Temple Hill for the purposes of the Birth Information and Tracing Act 2022. This was compiled chiefly from information in the final report of the Commission. This document stated that Temple Hill was also known as “St Patrick’s Infant and Dietetic Hospital” and stated that it was used as a nursery for many children, prior to adoption. It also trained nursery nurses. It did not admit mothers. 100. It not fully clear what happened to the Guild in the period between 1940 and 1943. At para. 27.18 of its final report, the Commission states that in 1941 the Archbishop placed the facilities of the Guild at Temple Hill, Abbey Street and Herbert Avenue under the charge of the Irish Sisters of Charity. It seems that Mountjoy Square had been disposed of by that stage. It is not clear where the children placed in Temple Hill came from after St Gerard’s was closed. It is also not clear whether Temple Hill also took in children who were not associated with mothers in St Gerards or Mountjoy Square during the period when those facilities were operating. 101. St Gerard’s, which appears to have been held by Miss Cruice on trust for the Guild, ended up being acquired and repurposed as part of the fever hospital in Clonskeagh. The Commission states at para. 27.22 of its final report that the Guild “was transferred to the Irish Sisters of Charity on 1 May 1943.” 102. The Commission states in paras. 27.4 and 27.5 that the source of its information on these matters comes from an article by Rev J. J. MacSheahan, entitled St Patrick’s Guild, published in the September 1943 issue of the Irish Jesuit publication, The Irish Monthly, and in Department of Health File RM/ARC/0/521022. 103. We are not told whether the Sisters bought the facility at Temple Hill off the Guild or the company. A sale might have required authorisation under s.14 of the Charitable Donations and Bequests (Ireland) Act 1867. The effect of a sale of Temple Hill free from the trust for the charitable purposes of the Guild would be to disassociate that facility from those purposes. 104. The other method of taking control, if Temple Hill was vested in the Company, would have been for the Sisters to take control of the company. That would enable them to continue the activities of the Guild at Temple Hill. Any such change of management and control would not have altered the charitable purposes for which Temple Hill was held on trust. 105. If Temple Hill was transferred at that time to other trustees, then it would have remained subject to the trust for the charitable purposes of the Guild. If that happened, the likely mode of appointment of new trustees would have been an assurance using the recital already described by me. 106. We are not told where children placed in Temple Hill came from after the Guild ceased to operate its facilities at Mountjoy Square and St Gerard’s. Temple Hill was still taking in infants when Marie Thornton was placed there. 107. The Company registered as an adoption society in 1953. This adoption society appears to have been run as part of the operation of Temple Hill. This suggests that the Company continued to hold Temple Hill on the trusts of the Guild and was controlled by the Archbishop or the Sisters. 108. The Department of Health memorandum dated February 1986 describes “Temple Hill” as follows: “St. Patrick’s Infant Hospital, Temple Hill, Blackrock was founded by St Patrick’s Guild -an adoption society. It has a capacity for approximately 100 infants. In addition to hospital staff it employs trainee nursery nurses.” 109. Temple Hill was closed in 1986 and the premises were sold. If the premises at Temple Hill were still vested in the Company at that time, it would have executed the conveyance. 110. The meaning of the relevant words in s.49(1) of the 2023 Act must be ascertained by examining that provision within its statutory context. I must look at the words used in s.49(1). In deciding on their meaning, I can look at the scheme of 2023 Act and ascertain whether other provisions in that Act cast light on their meaning. If a provision is obscure or ambiguous, or if a literal interpretation of that provision would be absurd, or not reflect the plain intention of the Act, then that provision can be given a construction which reflects the intention of the Oireachtas, if that intention can be ascertained from the Act as a whole: see s.5 of the Interpretation Act 2005. I can have regard to general background circumstances which motivated the Oireachtas to legislate, and which have a bearing on the purpose of the Oireachtas in enacting s.49. 111. I am not permitted to apply the double construction rule to give the relevant words a strained construction. This is because the issue of interpretation presented to me does not arise in the context of a claim that s.49(1) is invalid, having regard to any provision of the Constitution, where those words in their ordinary meaning have the effect contended for by the Minister. Even if I were permitted to consider application of the double construction rule, I could not do so in this case. I take the view that the first part of test is so clear that to give it a meaning other than that contended for by the Minister would not be permissible. If I did so I would arrogate to myself the power of the Oireachtas to legislate. 112. Section 2(1) of the 2003 Act specifies that “In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.” 113. This provision is somewhat different and narrower in ambit to s.3 of the UK Human Rights Act 1998. This is because s.2(1) of the 2003 Act specifies expressly that the obligation to interpret a statutory provision in a manner compatible with the State’s obligations under the Convention is “subject to the rules of law relating to such interpretation and application.” The term “rule of law” in this context includes common law rules. 114. The rule of interpretation set out in s.2(1) of the 2003 Act may only be applied to a statutory provision which has two plausible alternative meanings, where, if one of those meanings were adopted, this would lead to a breach of State’s obligations under the Convention. In that circumstance, it must be inferred that the legislative intent was that the provision should have the meaning which would produce that result. 115. The circumstances presented in these judicial reviews did not lead to a situation where the rule of statutory interpretation set out in s.2(1) of the 2003 Act could influence interpretation of the effect of the relevant words. 116. The term “Mother and Baby Institutions” appears in the short title to the 2023 Act. It also appears in the long title, describing the name of the scheme. The 2023 Act establishes a scheme called the “Mother and Baby Institutions Payment Scheme.” The phrase “Mother and Baby Institutions” indicates the character of the institutions to which the Scheme is intended to apply. 117. The long title to the 2023 Act does not refer to the Commission’s terms of reference or to the final report of the Commission. The background information contained in these documents does not help in determining legal effect of s.49(1), of the 2023 Act, though it is relevant to the remedial purpose of the Act and the purpose of s.49. 118. The Act includes all of the 14 institutions referred to in Appendix 1 of the terms of reference of the Commission and all of the former county homes in one or other of the Parts of Schedule 1. Any issue of whether or not any of one or more of the institutions referenced in Schedule 1 in fact met criteria used by civil servants or the Commission in deciding whether a home was or was not a mother and baby home was not relevant to this legislative decision. 119. Evidence of the characteristics of institutions included in Schedule 1 of the 2023 Act cannot be prayed in aid in construing s.49(1). If it emerged that an institution included in Schedule 1 did not conform with one of the conditions in the test specified in s.49(1), that could not establish that the relevant words must construed in a manner which allows the Minister to exercise the power to include an institution in that Schedule by overlooking the non-conforming condition. Furthermore, that type of information cannot be used as an aid to interpretation of the test. 120. It follows that the affidavit from the solicitor for John Kiernan and Marie Thornton exhibiting an extract from the final report of the Commission relating to the Regina Coeli Hostel is inadmissible for this purpose. 121. Section 2(1) of the 2023 Act specifies that “‘relevant institution’, subject to section 49, means an institution specified in column 2 of Part 1, or column 2 of Part 2, of Schedule 1”. 122. Section 2(1) of the 2023 Act also specifies that “ ‘relevant person’ means a person who is either or both of the following: (a) a person who, while the person was a child, was resident in a relevant institution other than in circumstances referred to in paragraph (b); (b) a person who, while the person was a child or while the person was an adult, or both, was resident in a relevant institution- (i) for reasons relating to the person’s pregnancy, or the birth or care of the child born as a result of the pregnancy, and (ii) where the primary purpose of the person’s admission to the relevant institution was the provision to the person of shelter and maintenance”. “Child” is defined as meaning “a person who has not attained the age of 18 years”. 123. “Scheme” is defined in s.2(1) of the 2023 Act as meaning “the Mother and Baby Institutions Payment Scheme established under section 5.” 124. Section 2(1) specifies that “ ‘concluding year’ means (a) in respect of a relevant institution specified in column 2 of Part 1 of Schedule 1 at any reference number, the year specified in column 4 of that Part at that reference number, and (b) in respect of a relevant institution specified in column 2 of Part 2 of Schedule 1 at any reference number, the year specified in column 3 of that Part at that reference number”. 125. Section 18(1) of the 2023 Act specifies that “Subject to this Part, a relevant person, who, in circumstances referred to in paragraph (a) of the definition of a “to this Part, a relevant person who, in circumstances referred to in paragraph (a) of the definition of a ‘relevant person’ in section 2 (1), was resident in a relevant institution for not less than 180 days, shall be entitled to a general payment in respect of the number of days, referred to in column 2 of Schedule 2 at any reference number, during which the person was so resident, of the amount specified in column 3 of that Schedule at that reference number.” 126. Section 18(2) specifies that “Subject to this Part, a relevant person who, in circumstances referred to in paragraph (b) of the definition of “relevant person” in section 2(1), was resident in a relevant institution, shall be entitled to a general payment in respect of the number of days, referred to in column 2 of Schedule 3 at any reference number, during which the person was so resident, of the amount specified in column 3 of that Schedule at that reference number.” 127. Section 18(4) and (5) of the 2023 Act give those who fulfil the qualifying criteria specified in s.18(1) further entitlements to either health services specified in in s.34(3) (a) to (h) free of charge, or a once off payment if they are not ordinarily resident in the State. S.18(8) provides that, subject to s.20, the “number of days” for the purposes of s.18, must be calculated in accordance with s.24. 128. Section 20 of the 2023 Act allows for a further application in cases where an applicant for payment or provision of services has made an application under s.19, and thereafter an institution is inserted into Schedule 1 under s.49(1) or the concluding year is amended of a relevant institution is amended under s.49(3). The reference in s. 20(3) to amendment under s.49(3). This power to amend the concluding year is conferred by s.49(4). This might lead to an application previously rejected being allowed on the basis that the applicant can now meet the minimum number of days requirement set out in s.18; see s.20(4)). The further application is “in respect of his or her residence in the additional institution, or in the relevant institution in the additional period, as the case may be”: see s.20(2). 129. Section 24 of the 2023 Act specifies the method of calculation of periods of residence. S.24(1)(a) requires a calculation of each period of residence in a relevant institution. By s.24(2)(b) “a period of residence by an applicant in a relevant institution shall be reckonable only where the admission date occurred on or before the 31st day of December in the concluding year in respect of the relevant institution.” Section 24(1)(b) provides for aggregation of the number of days of all periods spent in a relevant institution by the relevant person. Temporary absence from a relevant institution can be disregarded if a person resumes residence in that institution for the same reason as that for which he or she was admitted to the institution at the time when the period of residence began, provided that the period does not exceed 180 days: see s.24(2),(3),(4) and (5) of the 2023 Act. 130. Section 49 of the 2023 Act specifies as follows: “(1) The Minister, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, may, by regulation, provide for the insertion, in column 2 of Part 1, or column 2 of Part 2, of Schedule 1 of any 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, and in respect of which a public body had a regulatory or inspection function. (2) Without prejudice to the generality of subsection (1), regulations under that subsection – (a) shall provide for the insertion in Schedule 1 of the concluding year in respect of the institution being inserted, and (b) may, in respect of an institution being inserted in Part 1 of Schedule 1 , provide for the insertion of a name in column 3 of that Part. (3) The Minister, in considering for the purposes of subsection (1) whether an institution should be inserted in Part 1 or Part 2 of Schedule 1, shall have regard to the circumstances experienced by persons resident in the institution, and whether these were comparable to those experienced by persons resident in institutions specified in Part 1 or Part 2 of the Schedule. (4) The Minister, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, may, by regulation, provide for the substitution of a later year for a year specified in Schedule 1 as the concluding year in respect of a relevant institution, where the Minister is satisfied that relevant persons were resident, in circumstances referred to in paragraph (a) or (b), or both, of the definition of ‘relevant person’ in section 2 (1), in the relevant institution concerned in that later year. (5) In this section- ‘boarded out arrangement’ means an arrangement under which a child was placed by a local authority or health board in a foster home at which care of the child was provided in exchange for a fee; ‘care arrangement’ means- (a) a nursed out arrangement. (b) a boarded out arrangement, (c) an arrangement under which a child was placed with a foster parent (i) subject to subparagraph (ii), within the meaning of section 36(2) of the Child Care Act 1991, or (ii) where the arrangement concerned was made before the coming into operation of the provision referred to in subparagraph (i), in accordance with the law in force in the State at the time when the arrangement was made, whether or not the foster parent became the adoptive parent of the child…”nursed out arrangement” means an arrangement-(a)under which a child was placed in a foster home at which care of the child was provided in exchange for a fee, and (b) notice of which was required by or under the children Act 1908 to be given to a local authority.” 131. The 2023 Act can be described as a remedial measure in the sense that it compensates former residents of “relevant institutions” for poor treatment which they may have been subjected to while they were in those institutions. 132. Provisions in remedial statutes are interpreted in favour of fulfilment of their general purpose. For example, in McDonagh v. Chief Appeals Officer ([2021] IESC 33) [2021] I.L.R.M. 385 the Supreme Court, interpreting an appeals provision in the Social Welfare Consolidation Act 2005 (the 2005 Act) considered whether that statute could be properly described as a “remedial statute” such as to allow a purposive approach to interpretation: see paras.53 to 62 of the judgment of Dunne J., at pp.403 to 406 of the report. 133. Dunne J. considered that Act to be remedial, referring to the fact that it provided a particular type of benefit. However, it is important to bear in mind that the issue before the Supreme Court related to the correct interpretation of a provision governing appeals. Did that provision allow an appeal? Part 10 of the 2003 Act provided a generous structure for revisions and appeals of social welfare decisions. This aspect was emphasised in paras. 77 and 78 of her judgment. Dunne J. concluded that the interpretation of s.311 argued for by the Chief Appeals Officer was “anomalous and further, in my view, does not reflect the legislative intention which as I have noted, is intended to be generous and flexible. In my view, a decision not to revise is a decision, just as a decision to revise is a decision. The legislature did not confine appeals to the ‘original’ decision.” 134. However, this principle does not permit strained interpretations of statutory provisions intended to define whether a particular facility may be classed as a relevant institution or circumstances in which benefits are payable. For example, it could not be prayed in aid by a claimant who attempted to use the generous appeals and revision procedure under Part 10 to seek revision of a decision to refuse a benefit or allowance on the basis of change of circumstances which had occurred since the time of the application which resulted in that decision: see Little v. Chief Appeals Officer [2023] IESC 25. The 2005 Act includes many highly technical rules relating to the conditions on which allowances and benefits are payable and other matters such as assessment. 135. This point is adverted to by Dunne J. at para. 61 of her judgment at p.406. It is best explained in the following observation by Clarke J. in JHG v. Residential Institutions Review Committee ([2017] IESC 69) [2018] 3 I.R. 68 at 78 at para. 45, which she quoted with approval: “The underlying principle behind the proper approach to the interpretation of remedial legislation is that it must be assumed that the Oireachtas, having decided that it is appropriate to apply public funds to compensate a particular category of persons, did not intend that potentially qualifying applicants would be excluded on narrow or technical grounds, for that would be wholly inconsistent with the purpose of the legislation. On the other hand the Oireachtas is entitled, when deciding to apply public funds in a particular way, to define, within constitutional bounds, the limits of any scheme which it is decided should be put in place. Where that scheme is remedial, courts should not be narrow or technical in interpreting those bounds but they should not be ignored either. Against that backdrop I turn to the specific issues of interpretation which arise on this appeal.” 136. In JHG the issue was whether a claimant, who was resident in and institution “scheduled” by the Residential Institutions Redress Act 2002 (2002 Act), was eligible for an award of compensation for abuse suffered after being moved by the authorities in that institution into a non-scheduled institution in the knowledge that he was likely to suffer because of the poor conditions in the non-scheduled institution. The Supreme Court concluded that the words “that he or she was injured while so resident [in a scheduled institution]” in s.7 of the 2002 Act permitted the statutory decision-maker to conclude that he was eligible because the words “so resident” was a reference to a reference to “resident in [a scheduled] institution during his or her childhood” rather than a requirement that injury be sustained by that person in that institution. That Act did not require that the injury in question was suffered within a scheduled institution. 137. The court considered that the wording “the injury received as a consequence of such abuse” in s.10(4) of that Act had a bearing on the meaning of s.7, and aided a conclusion that the intent of s.7 was that injury suffered elsewhere as a result of abuse in a relevant institution (the abuse in this case being sending the claimant to an institution when it was known to be likely that he would be abused there) came within s.7. 138. The decision of the Supreme Court in JHG might fairly be described as being towards, or even at the borderline of permissible interpretation of a provision enacted to give effect to a remedial purpose. But what is the remedial purpose of the 2023 Act? How, if at all, does the 2023 Act provide for children, such as John Kiernan, who were moved from Schedule 1 institutions to other facilities such as nursing homes and children’s homes? 139. John Kiernan was an infant when he was moved from Bessborough to St Joseph’s. The evidence establishes that when he was moved from Bessborough Mother and Baby Home he did not have the necessary 180 days’ residence in that institution to qualify for participation in the benefits of the Scheme. If St Joseph’s cannot be inserted into Schedule 1, then his period of residence in that facility cannot be reckonable under the Scheme. 140. The function of the Minister under s.49 of the 2023 Act is vastly different to that conferred on the statutory decision-maker in JHG. While the terms of the final report of the Commission cannot assist in the interpretation of the relevant words, Chapter 2 of that report shows that a large number of children’s residential homes were in operation in the State during the period when the institutions named in Schedule 1 were operating. 141. Many of these homes may have provided infant care services and the placement of children for the purposes of adoption or care arrangements. The relevant words must be interpreted against this background context. Do they show a statutory intention to permit the Minister to make a regulation including such homes in Schedule 1? 142. Clarke C.J., delivering the majority judgment of the Supreme Court, touched on the necessity for the courts to exercise restraint in interpreting even remedial statutes. At para. 19 of his judgment at p.77 of the report he stated as follows: “However, in adopting that broad approach to the question of compensation the Oireachtas clearly applied some limitations which, again doubtless for good reasons of policy, were considered necessary to ensure some reasonable cap to the overall cost of the scheme. Claims are, at least in general terms, confined to institutions which have been scheduled under the 2002 Act. There would be no remit for a court, even exercising a generous or liberal approach to the interpretation of that Act, to extend its remit to institutions which are not scheduled even though there might, on the merits, be an argument in favour of a relevant institution having been included.” 143. The point here is that “relevant institution” was a matter for the Act to define. The 2023 Act attaches a qualifying condition which any “relevant person” must satisfy in order to participate in the benefits of the Scheme. That person must show that he or she resided for the specified minimum period one or more “relevant institution[s]”. Duration of such residence also determines the amount of benefit payable. 144. It was for the Oireachtas to determine the characteristics of the institutions which the Minister Could properly add into Schedule 1 of the 2023 Act. It may be that the purpose of s.49 of the Act was informed by the possibility, referred to by the Commission in its second interim report, that apart from the institutions referred to in Annex 1 of the Commission terms of reference, other institutions having the same characteristics may have operated in the State. 145. This is important because it would not follow that a provision enacted to meet that type of possibility should be given a strained interpretation, if the effect would be to extend the ambit of a limited redress Scheme to residents in a range of institutions which were not originally included in Schedule 1 of the 2023 Act. Whatever about the remedial nature of the overall purpose of the 2023 Act, the purpose of s.49 of the 2023 Act is not “remedial” in the general sense. It has a limited purpose. It allows the Minister to extend the Scheme to a institutions which meet defined criteria. 146. In order to be eligible to receive payments and free services, an applicant must show that he or she is a “relevant person.” It can be seen from the definition of “relevant person” in s.2(1) of the 2023 Act that the intention of the Oireachtas is to give benefits to persons who can show that they come within either or both of two qualifying categories. 147. The first category covers any child, male or female, who was resident in a relevant institution in circumstances other than, in the case of a female child, those arising from her residence there for reasons relating to pregnancy, birth or care of her child, and where the primary purpose of admitting her was to provide her with shelter and maintenance. 148. The second category covers any female who was resident in such institution for reasons relating to pregnancy, birth or care of her child, where the primary purpose of admitting her was to provide her with shelter and maintenance. 149. Sub-para. (b)(i) of the definition requires that the mother was resident there “for reasons relating to” her “pregnancy, or the birth or care of the child born as a result of the pregnancy.” Sub-para. (b)(ii) of the definition requires that the “primary purpose” of admission of a woman who became a mother, to a relevant institution was provision of shelter and maintenance to her. 150. Section 2(1) of the 2023 Act admits of a possibility that a “relevant person” may come within both of these categories. A woman might have started life as a child residing in a relevant institution. She might later in life, have become pregnant and have given birth to a child in circumstances which resulted in a further period of residence by her in a relevant institution. 151. A person who can show that he or she was a child coming within the first category is not required to demonstrate residence in a relevant institution along with his or her mother or birth in that institution, or even that his or her mother attended there for antenatal care. 152. Therefore, the first statutory objective is that a child who was resident in a relevant institution during childhood for reasons other than that child’s pregnancy should become entitled to receive compensation and specified free health services in recognition of the conditions which babies and young children were subjected to while residing in those institutions. The 2023 Act imposes a minimum period of residence in a relevant institution as an eligibility condition. 153. A mother coming within the second category is not required by this provision to have given birth in a relevant institution or even to have resided in or attended, or received pregnancy related treatment or advice there prior to giving birth. She might begin to reside there after the birth in order to care for her child in that institution or because it was a condition of care by the institution of her child that she reside there. 154. Therefore, the second statutory objective is that a mother who comes within sub-para. (b) of the definition of “relevant person,” because she was admitted into a relevant institution for the primary purpose of giving her shelter and maintenance and who took up residence there because she was pregnant, or had given birth to a baby, or because that institution would care for her baby if she went to reside there, should become entitled to receive compensation and specified free health services in recognition of the conditions which mothers were subjected to while residing in that institution. Again, the 2023 Act imposes a minimum period of residence in a relevant institution as an eligibility condition. 155. The test set out in s.49(1) specifies that “any 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 and in respect of which a public body had a regulatory or inspection function” may be added to Schedule 1 of the 2023 Act. 156. What does the word “institution” in this provision mean? Does it mean “a facility” run by an institution? An institution might operate two or more facilities. Clearly, a minimum period of residence by a qualifying person in a relevant institution is a condition of establishing entitlement to benefit under the scheme. But is the true meaning of the relevant words that any facility of an institution must be regarded as a separate institution? 157. In my view it is necessary to apply a functional interpretation to the term “institution which was established for the purpose of” as used s.49(1) of the 2023 Act. The element of the test which requires that an “institution” be identified by reference to functional and organisational characteristics. This must have regard for the realities of the nature of institutions which provided services of the type referred to in the relevant words, and of why and how those institutions were founded and operated. 158. It does not necessarily follow that the term “institution” is always synonymous with some particular facility such as a building. For example, if an institution was established for the purpose set out in the relevant words, it would not matter that mothers were provided with maternity services and residence in one facility and that their children were placed in, or subsequently moved to, a different facility of that institution. 159. Common-sense tells us that a primary function of mother and baby institutions was to provide children for adoption, boarding out and fostering and that at some point mothers might be separated from their children, with mother and child possibly residing in different accommodation provided by the institution within one facility or in separate facilities in the same or different locations. 160. It would not matter that the finances and management for separate facilities operated by a single institution were kept distinct. That might be necessary to obtain public funding for some particular activity being carried on exclusively in a particular facility, or for some other reason. 161. So what does the phrase “institution which was established for the purpose of” mean, in the sense that it is used in the relevant words? The word “institution” is frequently used to describe bodies established to provide charitable assistance. Charitable institutions are trusts for charitable purposes. The assets of the charity are held by trustees and used for those purposes. Until relatively recently, most hospitals, orphanages, homes for foundlings, and institutions for shelter and support were privately founded as charitable institutions. A large number of these charitable institutions continue to operate. 162. It is apparent from the final report of the Commission that since the foundation of the Irish Free State many of the privately founded institutions which looked after destitute mothers and their infant children were charitable. These institutions relied heavily on subventions from public funds to support their activities. 163. The term “established”, as used in the relevant words, is not a technical term. It goes together with the words “institution which was” and the words “for the purpose of”. It relates to both fact that an institution was formed, constituted or set up, and to the reason why those steps was taken. 164. Charitable institutions are sometimes formed and evolve in a haphazard way. The purposes for which a charitable institution was established may not be expressed in formal foundational documents. 165. Does the term “which was established for the purpose of” restrict the Minister to looking at the initial purposes of an institution as expressed by the founders? Not necessarily, as the range services provided by a charitable institution may evolve. 166. For example, legal adoption was first introduced into Ireland in 1952. A functional interpretation of the relevant words requires that fact to taken into account. If an existing institution registered as an adoption society or had operated in association with an adoption society after 1952, that would meet the requirement of the test that an institution have a purpose of “the placement of children for the purposes of adoption”. 167. The relevant words tie the test to the purpose for which an institution was established. An institution which has been established for core purposes may at some later stage discontinue providing a particular element of assistance. An institution may continue to operate within the sphere of some of its original charitable purposes, and may cease to pursue others, but that does not of itself change the purposes for which it was established. 168. The relevant words do not specify that 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” must at all times have provided all of these services, whether in a single facility, or at a single location. 169. While, absent further information, the activities known to have been carried on or not carried on by an institution at a facility or location will point to the likely purposes for which that institution was established, this may transpire not to be dispositive. 170. What about later developments? A new body or society may take over day-to-day trusteeship or management of the facilities of an institution founded for charitable purposes, but that change will not alter those purposes. The fact that property of a charitable institution is acquired by, or put into the name of a trustee vehicle, such as a company which has different stated primary objects in its constitution, or, at some later stage alters its constitution so as to change its primary objects, will not alter the underlying charitable objects of that institution. However, if charity is wound up and the charity property is sold off, the institution will cease to exist. 171. Foundational purposes of a charity may be altered in certain circumstances. Assets of a charity in which the original charitable purposes cannot be fulfilled in whole or in part may be diverted to other charitable purposes set out in cy-près schemes. 172. What do the words “for the purpose of” in s.49(1) mean in the context of the wording that follows on from those words? Does this phrase point to a requirement that there be a composite purpose, or does the test permit an institution to qualify where it was established to provide one, but not all, of the services specified in the relevant words? 173. At first blush, the use of the words “for the purpose of” in s.49(1) of the 2023 Act shows an intention to impose a requirement that an institution must be established for a composite of purposes, whic