On the 31st of January this year, Mr Patrick FitzSymons became the first person to initiate legal proceedings against the state for its ambivalence to the practice of illegal adoptions that were being carried out by St Patrick’s Guild, an agent organisation of the Catholic Church, during the 1960s. Mr FitzSymons, a well-known actor from Belfast, learned of the nature through which he was adopted over 20 years ago, however it is now estimated that 147 other adoptees were subjected to a similar process during this time. Dublin law firm Coleman Legal partners are currently preparing as many as 25 other cases that mirror the circumstances of his own and it seems likely that with increased exposure, a greater number of examples of institutional malpractice will come to light.
It is estimated that Mr FitzSymons’ action may take up to three years to be heard in its entirety. Aside from a 2013 recommendation from the EU Commission encouraging Ireland to enable the uses of “collective redress” in matters of commercial, environmental and competition law, the tradition in Irish law is for each case to be heard individually and a bespoke judgement given accordingly. When questioned about the possibility of an exception being made for this particular collection of cases, a representative for Coleman Legal Partners admitted that they would not be applying for such an exception due to this system of individual hearings.
Remedy to be awarded in such instances of constitutional right infringements will hope to be clarified by the ruling of the case. Mr Fitzsymons’ claims range from personal and psychological injury to acts disallowed following the assesion to the European Charter of Human Rights, however there may be uncertainties as to what relief may be given considering the diverse nature of his claims. No set reparation currently exists in statute for constitutional breaches, however breaches of profound severity, especially those against children (State (Quinn) v Ryan, 1964), have previously been awarded monetary damages by the courts. Remedies of monetary value may only be handed down from the court where the constitutional rights of the individual were not found to be protected by common or statutory law. With this in mind, the specific phrasing of Mr FitzSymons’ plea may have significant impact on the courts’ decision.
The judicial reasoning in this action may be one of interest for many years to come considering the volume of similar litigation that will soon be emerging in the courts. The ruling of this case, and potential subsequent appeals will most likely act as a guide to the judiciary in deciding these actions.
Doireann O’Sullivan – Law Writer