Supreme Court to hear appeal on rights of unborn in February

The Supreme Court has agreed to urgently hear next month the State's appeal against a significant finding the word "unborn" in the Constitution means a "child" with constitutional protection beyond the 8th amendment.

Lawyers for the State told the Chief Justice on Thursday morning they wanted an “extremely early” hearing date because, while no date for a referendum on the 8th amendment had yet been set, the prospect of a referendum in late May had been raised.

Mary O’Toole SC said her side is very anxious the appeal is heard and decided as soon as possible.

The Chief Justice, Mr Justice Frank Clarke, said the appeal raised issues concerning the 8th amendment and related matters, and the courts, as was the case with the State, would not be anxious to have the appeal heard in the middle of a referendum campaign.

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In the circumstances, the court would facilitate the State’s request for the earliest possible hearing and would hear the appeal in February, probably around February 22nd or 23rd. The court would set the exact date once the necessary legal documents had been provided.

Michael Conlon SC, for the respondents to the appeal, agreed with Ms O’Toole the appeal would probably run for two or three days.

The case was before the Chief Justice today for urgent case management after the Supreme Court last month agreed to hear the appeal, which concerns the extent of the rights of the unborn and of non-marital parents, because of the “systemic” importance of the issues raised.

While the High Court decision concerned an immigration case, the findings had wider significance, the Supreme Court noted.

The appeal is against a July 2016 judgment in which Mr Justice Richard Humphreys held the “unborn” is an “unborn child” with effective rights, including as a result of the Children’s referendum, extending beyond the protection provided in the 8th amendment — Article 40.3.3 — which obliges the State to defend and vindicate the right to life of the unborn “with due regard” to the equal right to life of the mother.

‘Serious repercussions’

The State has expressed concern, if the High Court findings are upheld, they will have "serious repercussions" for the duties of the State, particularly entities such as the Child and Family Agency.

The High Court judgment was delivered in proceedings aimed at preventing the deportation of a Nigerian man. The case was brought by the man, his Irish female partner and their now two-year-old child, who was not born when the case was initiated.

The High Court said the unborn child, including of a parent facing deportation, enjoys “significant” rights under the Constitution “going well beyond the right to life alone”, many of which are “actually effective” and must be considered.

The Minister must consider the constitutional and EU rights of the man, his partner and the child, including their family rights and rights as non-marital parents, he ruled. He stressed his findings did not mean a person such as the man, unlawfully in the State since 2007, was automatically entitled to remain here.

The grounds of appeal include the Minister’s insistence the High Court was wrong to find the unborn is a “child” for the purposes of Article 42A, inserted as a result of the 2012 Children’s Referendum, and that Article 42A affords protection for the rights of “all” children “both before and after birth”.

It is also argued the High Court erred in finding the 8th amendment does not state the legal position of the unborn on an “exclusive” basis.

Other grounds include arguments the High Court erred in finding the combined effect of Article 42A, constitutional recognition for same sex marriage, European law and “societal changes” is that unmarried parents now have wider inherent constitutional rights in relation to their children and each other.

Today, Mr Conlon, instructed by solicitor Brian Burns, agreed with the Chief Justice his side had no legal interest in the case because matters had moved on for his clients. However, having agreed costs issues with the State, they were prepared to act as respondents in this important appeal and had no difficulty with an expedited hearing.