State seeks to appeal High Court finding on word ‘unborn’

The State is seeking to appeal a key High Court finding that the word "unborn" in the Constitution means an "unborn child" entitled to a range of rights extending "well beyond" the right to life.

Of particular concern is the finding by Mr Justice Richard Humphreys that the State's duty to protect the rights of "all children" under the constitutional amendment approved in the 2012 children's referendum means all children "before and after" birth.

Since he gave judgment last July, its potential implications, including for the State’s obligations in childcare proceedings, have been discussed by Government departments. They have decided to seek leave to appeal on grounds that legal issues of exceptional public importance are involved.

While the findings were made in the context of a deportation case against the Minister for Justice, the State has been advised their significance extends well beyond that.

The judgment considered the rights of a Nigerian man facing deportation, plus the rights of the man’s Irish female partner and their child. In July 2015, the man and his then pregnant partner sought leave for judicial review and got an interim injunction restraining his deportation. Their child was born a month later.

The plaintiffs were represented by Michael Conlon SC, instructed by Brian Burns, of Burns, Kelly, Corrigan Solicitors. Mr Burns has confirmed his side has been notified the State intends to seek a certificate of appeal.

A certificate for appeal to the Court of Appeal must be obtained but it is widely believed, given the importance of the issues raised, that it will be granted when the application is heard next month. The State may seek an appeal directly to the Supreme Court.

An appeal is considered all the more likely because the judgment highlights an apparent conflict between High Court decisions concerning the extent of the rights of the unborn.

Deportation orders

Although those particular cases were also concerned with deportation orders, they exposed an apparent clash over whether the rights of the unborn are exclusively contained within article 40.3.3 – the 1983 anti-abortion amendment to the Constitution.

A 2008 decision by Ms Justice Mary Irvine, which Mr Justice Humphreys endorsed, said the unborn child had significant rights under the Constitution even before article 40.3.3 and those rights continued after article 40.3.3.

Mr Justice Humphreys explicitly disagreed with Mr Justice John Cooke’s 2009 finding that article 40.3.3 “exclusively” states the rights of the unborn and justiciable rights cannot be asserted on behalf of an unborn before birth.

Mr Justice Humphreys noted article 42A, inserted in the Constitution following the Children’s Referendum , provides “the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”. Because an “unborn” is “clearly a child”, article 42A means all children “before and after birth”, he said.

Dismissing the State’s argument article 42A cannot apply to unborn children because they cannot exercise several rights, he said a born child suffering from profound disability may not be able to meaningfully enjoy constitutional rights such as freedom of expression but that did not alter the child’s status as a child entitled to rights.

The State’s submissions as to how to interpret articles 40.3.3 and 42A were intended to be “good for this officially disfavoured category of human person and not otherwise” and “a pragmatic fix to tidy away the problem of the unborn”. It was “irrational, and therefore unlawful”, for the Minister to ignore the likely potential situation of an unborn child if to do so would be to fail to consider that child’s likely rights.

The unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”. Many of those rights are “actually effective” rather than merely prospective.

While neither article 42a nor article 40.3.3 were intended to confer immigration rights, that did not displace any legal consequences flowing from the prospective position of an unborn child with a parent facing deportation, he said.

Granting leave for judicial review over the man’s intended deportation, the judge said, in considering whether or not to revoke the 2008 deportation order, the Minister must consider the right to life of the unborn plus the legal rights the child will acquire on birth, insofar as those were relevant to deportation.

‘Some peculiarity’

Dismissing as “entirely without merit” the Minister’s argument the only relevant right of this unborn child was a right to life, he said recognition of rights of the unborn is not “some peculiarity” of Irish or common law and the UN Convention on the Rights of the Child recognises a child needs appropriate legal protection before and after birth.

The Minister must consider the constitutional, statutory, EU and ECHR rights of the man, his partner and the child, including their family rights under article 8 of the ECHR, he ruled.

His findings did not mean a person in the position of this man, unlawfully in the State since 2007, was automatically entitled to remain here, he stressed.