State to appeal decision on definition of ‘child’ in family reunification law

Supreme Court to hear appeal that ‘child’ can only apply to biological and adopted children

The Four Courts in Dublin. Photograph:  Nick Bradshaw

The Four Courts in Dublin. Photograph: Nick Bradshaw

 

The Supreme Court has agreed to hear an appeal by the State over a decision the word “child” in the International Protection Act can, for family reunification purposes, extend beyond biological children.

The appeal will centre on whether “child” in section 56.9 of the 2015 Act includes children other than biological or adopted children. It arises from a High Court decision in the case of a man – Mr X – who got subsidiary protection here and then applied for family reunification with a 14-year-old boy and 13-year-old girl.

Mr X said he had been appointed in his native country as sole legal guardian of the two children.

The Minister asked Mr X in early 2016 if he would undergo a DNA test to establish his parentage of the children. Mr X initially agreed but then declined.

The High Court said he changed his mind as a result of a fear his “possible wife” may have been unfaithful and the children may not biologically be his and he “did not want the pain of discovering that his fears are true”.

He was refused family reunification but, in March 2017, made a fresh application which was also refused. He took High Court judicial review proceedings aimed at quashing the refusal.

In a judgment last May, Mr Justice Max Barrett said section 56.1 of the 2015 Act provides reunification may be sought regarding “a member of the family of the sponsor”. Section 56.9 provides that “member of the family” includes “a child” of the sponsor, aged under 18 and unmarried at the date of the application.

‘Wide diversity’

The judge said the term “child” is not defined in section 56.9. Assuming these two children are the biological children of another man, although Mr X regards them as his, each of them can properly be described as a child of Mr X for the purposes of section 56.9, he said.

There is a “wide diversity” of familial structures and the relationship of father/child is not confined by the 2015 Act to a biological father. It is “not unknown” for a child to grow up addressing and thinking of a man who is not their biological father as “Dad”.

A “cookie cutter” definition of children, as embracing only biological children, “would doubtless be easier for the State to police”, not least given the availability of DNA testing, “but it is not what the Act provides”, perhaps because of an understanding that, in a diverse society, defining who is a child of someone “is not always straightforward”.

He ruled the Minister had erred in proceeding on the basis that section 56.9 requires that a sponsor be the natural parent of a child and directed a reconsideration of the matter.

In a recently published determination, three Supreme Court judges – Chief Justice Frank Clarke, Ms Justice Iseult O’Malley and Ms Justice Mary Irvine – cleared the way for a “leapfrog” appeal by the Minister and State against that decision. A leapfrog appeal is one directly from the High Court to the Supreme Court, rather than the Court of Appeal.

The judges said the definition of “child” for the purposes of section 56.9 has potential to be relevant to any case in which the question of family reunification arises in the circumstances of a minor who is claimed to be a child of a person who has international protection but where the minor is not a biological or adopted child of that person. The question as to which minors may potentially have the benefit of family reunification is “a matter of general public importance”, they said.

A hearing date for the appeal will be fixed later.