Monday 27 January 2020

High Court challenge to Children’s Referendum ‘yes’ result

Tim Healy

TWO women have brought a High Court challenge aimed at overturning the result of the Children Referendum.

The referendum was passed by a majority of 58pc to 41pc based on a 33.49pc turnout.

The first challenge is by Joanna Jordan, a homemaker of St Kevin's Villas, Glenageary Road Upper, Dun Laoghaire, Co Dublin, who campaigned for a No vote in the referendum.

The second petitioner is Nancy Kennelly, retired and living at Abbot Close Nursing Home, Askeaton, Co Limerick, who voted Yes by post before the Supreme Court ruled some information distributed by the Government during the referendum campaign was not impartial.

Mr Justice Iarfhlaith O'Neill today directed that the State be placed on notice of the application challenging the November 10 referendum result and he returned the matter to next Tuesday.

The women claim the Government's use of public money to fund an unbalanced information campaign on the proposed amendment to the Constitution amounted to wrongful conduct that materially affected the outcome of the referendum.

The Supreme Court, in a ruling earlier this month upholding Dublin engineer Mark McCrystal's challenge to the Government's information campaign, found "extensive passages" in the Government's information booklet and on its website about the referendum did not conform to the 1995 Supreme Court judgment in the McKenna case requiring referendums to be explained to the public in an impartial manner. The material contained a misstatement as to the effect of the referendum, the court also found.

Yesterday, Mr Justice O'Neill agreed with Paul Sreenan SC, for the petitioners, they will need to have the text of the full Supreme Court judgment, to be delivered on December 11, before their application may be heard.

The women are also seeking leave to bring a parallel challenge to the constitutionality of those provisions of the referendum Act 1994 which require that those seeking leave to bring a petition challenging the outcome of a referendum must first show a referendum was "affected materially" by an irregularity.

The standard of "material" effect set out in Sections 42 (3) and Section 43 of the Referendum Act 1994 is too high, they claim.

The woman contend the onus should be on the entity that has committed any wrongful conduct to show that breach did not have a material effect on the referendum.

Alternatively, they contend there should be no burden on a petitioner to show an effect on a referendum in order to be entitled to a remedy or, if there is to be a burden, that should go no further than requiring them to show the alleged wrongful conduct "may" have affected the referendum.

The petition is also supported by an affidavit by journalist John Waters, who advocated a No vote in the referendum.

In her affidavit, Ms Jordan said she felt very strongly it would be appropriate to vote No because she was unhappy the State would be given power to step into shoes of parents in making critical decisions affecting children.

She was extremely concerned about the Government's information material and believed it was one-sided and not impartial or balanced.

While campaigning for a No vote, it became apparent voters had a mistake understanding of the impact of the referendum and believed, for example, in certain extreme cases, children could not be taken into care unless the amendment was passed she said. It was obvious the Government information influenced people into voting yes, she said.

In her affidavit, Ms Kennelly said in voting by post, she particularly relied on the information provided by the Government which appeared to her to be exclusively in favour of a yes vote. She placed particular emphasis on that information and trusted the Government to provide her with fair and impartial information.

She decided to vote yes and voted by post almost two weeks before the November 10 vote. She later learned of the Supreme Court ruling when it was too late to change her vote and was "shocked and angered" at the outcome of the poll. She believed she and others were hugely influenced by the Government's material and, had she had impartial information, may well have voted against the amendment, she said.

In his affidavit, Mr Waters said the Government's information cannot but have influenced voters to vote yes and he expressed disappointment with the Government's response, particularly that of the Minister for Justice, to the Supreme Court ruling.

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