Two women, a Dublin homemaker and a nursing home resident, have initiated a legal challenge aimed at overturning the result of the children referendum. The referendum was passed by a majority of 58 to 41 per cent based on a 33.49 per cent turnout.
The petitioners are Joanna Jordan, a homemaker of St Kevin’s Villas, Glenageary Road Upper, Dún Laoghaire, Co Dublin, who campaigned for a No vote in the referendum, and Nancy Kennelly, Abbot Close Nursing Home, Askeaton, Co Limerick. Ms Kennelly voted Yes by post before the Supreme Court ruled some information distributed by the Government during the campaign was not impartial.
Mr Justice Iarfhlaith O’Neill directed the State be placed on notice of the application 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 amounted to wrongful conduct that materially affected the outcome of the referendum.
The Supreme Court earlier this month upheld Dublin engineer Mark McCrystal’s challenge to the Government’s information campaign.
It 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.
Mr Justice O’Neill agreed with Paul Sreenan SC, for the petitioners, that they will need to have the text of the full Supreme Court judgment, to be delivered on December 11th, before their application for leave to bring the petition may be heard.
Parallel challenge
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 petition is supported by an affidavit by journalist John Waters, who advocated a No vote in the referendum.
In her affidavit, Ms Jordan said, while campaigning for a No vote, it became apparent voters had a mistaken 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 she is a resident in the Abbot Close Nursing Home. As a postal voter she particularly relied on the information provided by the Government, which appeared to her to be exclusively in favour of a Yes vote.
She decided to vote Yes and voted by post almost two weeks before the November 10th 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.
In a detailed 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.
