Irish woman challenges passport refusal for non-biological children

An Irish woman who is a full legal parent of her non-biological children under Australian law is asking the High Court for an order quashing the State’s alleged refusal to grant them Irish passports.

The woman was in a same-sex partnership with the biological mother, an Australian citizen, who gave birth to their children. The Irish woman is listed as a “parent” on the children’s birth certificates. She said she intends to return to Ireland to settle here with the children.

Her counsel told the court that the Department of Foreign Affairs refused her children’s passport application on the basis that it did not recognise her as their mother or parent.

In her judicial review against the Minister for Foreign Affairs, the Attorney General and Ireland, the woman seeks a declaration that she is the legal parent of her children and that the process followed by the Minister in allegedly refusing their Irish passports was unlawful.

She also wants an order overturning the Minister’s alleged refusal and another compelling him to register the births of her children into the registry of births abroad in accordance with section 27 of the 1956 Act.

In documents put before the court, the woman claims the department informed her in 2017 that her children are not entitled to Irish citizenship “having regard to the legal definition of parent in this context under Irish law”.

It is claimed the department stated that, for the purposes of the Irish Nationality and Citizenship Act 1956, a parent is understood to mean either the “mother” or “father” of the child, with the mother interpreted as the female person who gave birth to, or adopted, the child.

She had submitted the children’s birth certificates to the department as proof of parentage, she claimed. She attempted to appeal to the Minister explaining that she, as legal parent, did not have to “adopt” her children. In May 2021, the Consulate General of Ireland informed her in the passport applications had been cancelled.

Legal uncertainty

It is claimed the woman has been left a “legal stranger” to her children under Irish law, while there is also “legal uncertainty” regarding the children’s status at a time when they are considering moving to Ireland. The woman said she has no option but to pursue a judicial review challenge, save for adopting her children, which she believes is an “attack” on her parental rights.

Among her grounds of challenge is a claim the Minister erred in law and acted beyond his powers by not recognising that she is a legal parent to her children and by denying their passports. She also notes the State’s recognition of same-sex parents under the Children and Family Relationship Act 2015 and submits that this negates or contradicts the Minister’s interpretation or definition of the word “parent”.

Further, she alleges constitutional breaches and claims the failure to recognise her parentage and to provide passports is a breach of her right to respect for the family life under the Charter of Fundamental Rights of the European Union.

Mr Justice Charles Meenan granted leave on an ex-parte basis (only the woman was represented), permitting the woman to pursue her case along with others of the same nature initiated under the names of her children.

The matters were adjourned until March.