State ordered to pay 85% of costs in case upholding rights of ‘unborn’

The State must pay 85 per cent of the costs of a deportation case resulting in a significant High Court judgment on the legal rights of the “unborn”, a judge has ruled.

The fact the State is seeking a “leapfrog” appeal to the Supreme Court against his judgment means the State considers it involves a matter of “general public importance”, Mr Justice Richard Humphreys said this week.

In seeking that appeal, the State wants clarity on the extent of the constitutional rights of the unborn due to a number of apparently conflicting High Court judgments on that issue.

The Supreme Court is expected to decide within months whether to permit an appeal.

Before it can hear a “leapfrog” appeal, bypassing the Court of Appeal, it must decide if the case either involves a matter of general public importance or such an appeal is in the interests of justice.

Point of law

In his costs ruling this week, Mr Justice Humphreys said, while he considers a point of law of “exceptional public importance” is involved, it was for the Supreme Court to decide that.

He said the question of rights of the unborn generates an “almost reflex assumption” the relevant context is the law on abortion, but the “basic point” from his judgment was the position of the unborn child is “a wider legal question”.

Noting almost 66,000 births here in 2015 when there were 3,451 abortions performed in the UK on women giving Irish addresses and 26 abortions here, he said the position of the unborn falls to be considered “95 per cent of the time” outside an abortion context and generally where there is a “broad identity” of interests between parents and the unborn.

The case, brought to prevent deportation of a Nigerian man here since 2007, was initiated in July 2015 by the man, his Irish partner and their then-unborn child, now aged almost two.

‘Significant’ rights

Last year, the judge held 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”.

He held “unborn” means “unborn child” with rights extending beyond the right to life under Article 40.3.3 – the 8th amendment – of the Constitution.

He also interpreted Article 42A of the Constitution, inserted as a result of the 2012 Children’s Referendum, as affording protections to all children “both before and after birth”.

When considering whether to revoke the man’s 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, he said. She must also consider the constitutional, statutory, EU and ECHR rights of the man, his partner and the child.

This week, the judge made 85 per cent costs orders in favour of the applicants for reasons including they won on the main issue, the importance of the case and the fact the State specifically asked him to decide what degree of consideration should be afforded to the unborn child.

Prospective position

He noted the applicants won a declaration, before making a deportation order, the Minister for Justice must consider the current and prospective situation of the applicant, including the prospective position of any child of his that is unborn when the application is made.

For reasons including the applicants failed on other issues, they must pay 15 per cent of their costs.

He rejected the State’s arguments the man’s failure to tell the court or his lawyers he had a relationship with a second woman, and a child by her, around the time his case was initiated was relevant to costs issues.

The applicants, represented by Michael Conlon SC, instructed by solicitor Brian Burns, are not opposing the State’s application for a Supreme Court appeal.