One of two women who earlier this month initiated a petition and constitutional challenge aimed at overturning the result of the Children Referendum has withdrawn from the proceedings, the High Court heard today.
Nancy Kennelly, a resident of Abbot Close Nursing Home, Askeaton, Co Limerick, has decided she no longer wishes to be involved in the case.
The action will be maintained by her co-challenger, Dublin homemaker Joanna Jordan, and is expected to be heard early next year.
Ms Kennelly voted Yes by post two weeks before polling day on November 10th and had said she trusted the Government's information campaign which she considered to favour a yes vote. A Supreme Court ruling that aspects of the information was one-sided came after she had voted and, if she had impartial information, she may have voted No, she said.
Paul Sreenan SC, for Ms Jordan, today handed Mr Justice Iarfhlaith O'Neill a letter from Ms Kennelly to her solicitor outlining her reasons for withdrawing and the judge made orders permitting the title of the proceedings to be amended.
On consent of Mr Sreenan and Michael Cush SC, for the State, the judge also made directions for exchange of legal documents and returned the matter for further directions to January 15th.
In the action, Ms Jordan, St Kevin's Villas, Glenageary Road Upper, Dun Laoghaire, Co Dublin, who campaigned for a No vote in the referendum, wants leave to bring a petition challenging the result of the referendum, passed earlier this month by a majority of 58 to 41 per cent based on a 33.49 per cent turnout.
She also wants to challenge the constitutionality of provisions of the Referendum Act 1994 which require, before the High Court may permit a petition to be brought, a petitioner must show alleged wrongful conduct by a party had a "material" effect on the outcome.
She claims that "material effect" standard is too high and a standard of "may have" affected is adequate. She also claims the onus of proof should be on the alleged wrongdoer to prove the referendum was not affected.
Ms Jordan alleges the Government's spending of €1.1m public monies on its referendum information campaign found by the Supreme Court to have been one-sided in some respects was conduct materially affecting the outcome.
She is relying on the Supreme Court decision earlier this month upholding complaints by Dublin engineer Mark McCrystal that aspects of the Government's information were not impartial and therefore breached the Supreme Court's McKenna judgment of 1995 requiring referendum information to be explained to the public in an impartial manner.
Rather than she having to prove the campaign materially affected the outcome, the Government should be required to prove it did not, she contends.
The "material" effect standard means there is no effective remedy for such breaches of the Constitution and a lower evidentiary threshold was required under the Constitution, she argues.
