Tuesday 23 January 2018

Appeal being sought over judge's extended meaning of 'unborn'

The High Court, Dublin
The High Court, Dublin

Aodhan O'Faolain

The state is seeking permission to appeal a significant High Court judgment which found the word “unborn” in the Constitution means an unborn “child” with rights beyond the right to life.

Although that finding was made in the context of an immigration case, it is understood the State has been advised its significance extends well beyond that. 

An appeal is considered particularly necessary because there now exists apparently conflicting High Court decisions on the extent of the constitutional rights of the “unborn” .

The application for a certificate of appeal will come before Mr Justice Richard Humphreys next month arising from his judgment last July finding  “unborn” means an “unborn child” with rights extending beyond the right to life under Article 40.3.3 (the 1981 anti-abortion amendment of the Constitution).

The judge also noted Article 42A of the Constitution, inserted as a result of the 2012 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”. 

As an “unborn” is “clearly a child”, Article 42A means all children “both 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 a large number of constitutional rights such as freedom of expression but that did not alter their 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”, he said.

It is understood his judgment has since been discussed by a number of Government departments.

The judgment considered the rights of a Nigerian man facing deportation along with the rights of the man’s Irish female partner and their child, unborn when their action aimed at preventing deportation was initiated.

In July 2015, the man and his then pregnant Irish 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 confirmed this week his side had been notified the State intended to seek a certificate of appeal.

When the matter was mentioned this week to Mr Justice Humphreys, he adjourned to December 12 the State’s application.

Legal sources believe, due to the importance of the issues raised, a certificate for an appeal to the Court of Appeal is likely to be granted. The State may also seek a “leapfrog” appeal, one bypassing the Court of Appeal directly to the Supreme Court. 

In his judgment, Mr Justice Humphreys said 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 to the plaintiffs 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 for Justice 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.

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