Supreme Court consider appeal over meaning of 'child' as applies in family reunification cases

The appeal is over a High Court finding in the case of an African man, Mr X, who came here in 2006. After getting protection in 2014, he sought family reunification in early 2015 with two children, then aged 15 and 12, whom he claims are his.

He described himself as single and produced birth certificates for the children naming him as their father along with a judgment from a court in his native country appointing him as their sole legal guardian.

He initially agreed to the Minister for Justice's request to undergo a DNA test but changed his mind in 2016, saying he suspected his "wife" was unfaithful and he was afraid to discover he might not be the children's biological father.

After twice being refused reunification, he took judicial review proceedings and the High Court found in his favour.

Mr Justice Max Barrett said section 56.9 of the International Protection Act 2015 provides reunification may be sought regarding “a member of the family of the sponsor”.

It provides “member of the family” includes “a child” of the sponsor, aged under 18 and unmarried at the date of application and the term “child” is not defined, the judge noted.

Assuming the 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 held.

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.

The Minister erred in proceeding on the basis section 56.9 requires a sponsor be the natural parent of a child and should reconsider the matter, he ruled.

On Thursday, a five judge Supreme Court, comprising the Chief Justice, Mr Justice Frank Clarke and his four female colleagues, who sat together for the first time, reserved judgment on the appeal by the Minister for Justice and State over the High Court finding.

Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley, Ms Justice Mary Irvine and Ms Justice Marie Baker, are among 167 female judges in Ireland, representing 38 per cent of the judiciary compared with 13 per cent in 1996.

In submissions for the appellants, Gerard Durcan SC, with Noel Travers SC and Anthony Moore BL, said Irish law provides the mother of a child is the person who gives birth to that child and the father is the person who provides the sperm. In this case, Mr X had failed to show a biological link to the children.

The extent of family reunification is a matter for individual states, he submitted.

There is “only one constitutional family” and Irish law does not have regard to the concept of “other families”.

The "normal meaning" of “child” is the child of biological parents and there was nothing in section 56.9 that entitled the High Court to find otherwise, he said. The Minister was also reasonably entitled to require the DNA test as it provided the “best evidence”.

Conor Power SC, instructed by solicitor Albert Llussa, for Mr X, said the Minister had taken no issue with the children's birth certificates and was not entited to refuse reunification applicaiton over failure to undergo a DNA test.

The "social and remedial" context of the Act supported his side's arguments the meaning of child is wider than the "narrow biological relationship" suggested by the State. The intent and purpose of family reunification as provided for by the Oireachtas was to protect the family unit that in fact existed in the man's home State.

The Minister's limited definition of child was "outdated", at odds with Irish domestic law and could lead to unjust situations.

The United Nations High Commissioner for Refugees was also involved in the appeal as assistant to the court on legal issues. Its counsel Michael Lynn SC argued family unity is an “essential” right of refugees and an essential element in enabling them resume a normal life and also facilitates refugee integration in their host State.