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Monday 18 June 2018

Ruling seen as a potential Pandora's Box of legal headaches for the State

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Shane Phelan

Shane Phelan

The stakes are high in the asylum ruling appeal being considered by the Supreme Court. Seven judges must decide whether to uphold a High Court ruling made by Mr Justice Richard Humphreys in July 2016.

It largely escaped attention at the time, but it is now clear it has the potential to open a Pandora's Box of legal headaches for the State and its institutions.

Of immediate concern is the impact the ruling, if upheld, will have on the forthcoming abortion referendum.

But in the Supreme Court yesterday, counsel for the State Mary O'Toole SC alluded to a range of other potential consequences which would be "difficult to predict".

Mr Justice Humphreys's ruling came in a case where he was initially asked to consider revoking a deportation order against a Nigerian man who was about to become the father of an Irish child.

The man and his Irish partner issued proceedings aimed at preventing the planned deportation and seeking residency in Ireland on the basis of the potential parentage.

As things turned out, the man succeeded in remaining in Ireland by means of a separate application.

In any event, Mr Justice Humphreys issued a ruling in which he found the unborn was "clearly a child" and had a range of constitutional rights, beyond the right to life contained in the Eighth Amendment.

The unexpected ruling was not what the State wanted.

The State's position is that prior to the amendment being introduced in 1983, there was no definitive constitutional position on the right to life of the unborn, let alone any other constitutional rights.

Ms O'Toole argued constitutional rights, save the right to life, only begin when someone is born. Although she did not go into the issue, many observers believe the ruling, if upheld, could create considerable uncertainty around the proposed abortion referendum.

For example, even if the Eighth Amendment was to be repealed, it is conceivable that legal challenges aiming at safeguarding the unborn could be mounted - relying on the Humphreys judgments and others made prior to 1983.

In her submission to the court, Ms O'Toole argued strongly that the range of consequences, although difficult to predict, would reverberate throughout the legal system.

The decision would place obligations on the Justice Minister in respect of decisions involving unborn children in the operation of the immigration system.

But there would also be ramifications for areas outside immigration, such as in medical treatment, succession law and for bodies such as the Child and Family Agency.

Would the Government, for example, have to make all women of child bearing age take folic acid to vindicate the rights of the unborn, she wondered.

The seven judges will hear arguments in favour of upholding the ruling today, and it is expected to be a number of weeks before they rule on the matter.

Irish Independent

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