Laws of unintended coherence - Village Magazine

4 0 September 2016

hat an irony it would be, in these times

of the exponentially reducing quality of

public debate arising from media

degeneracy, parliamentary groupthink,

the tyrannical imperatives of political

correctness, the moronic cacophony of the twitterati

and the impoverishment of the education system, if

the only functional dialectic available to our society

was to occur between men and women dressed in wigs

and gowns, a slo-mo exchange dragged out over years

and decades, a sombre exchange of opinions and sub-

tleties in which the most vital matters affecting our

society and its future were teased out in ponderous

and archaic language and encountered only at the

edges of civic freedom, in the hushed and terror-induc-

ing rooms of our legal system. The more imminent it

appears, the more it seems like, to coin a phrase, an

appalling vista.

And yet, from time to time, a judgment emerges

which, in its eloquence and reason, gives us cause for

hope that, when that dreaded eventuality hits, all may

not be lost.

Such a feeling came over me reading the judgment of

Mr Justice Richard Humphreys in the much-publicised

recent case of I.R.M. and ors -v- Minister for Justice and

Equality and ors. The case became a media talking-

point in the month or so since its publication because

of the ways in which it touched on the meaning and

scope of Article 40:3:3, aka the Eighth Amendment, but,

insightful and humane as were its treatment of the

unborn child, it is actually more far-reaching than that.

The case illustrates in a quite dramatic manner the

way in which constitutional provisions and amend-

ments can interact with legal judgments old and new

to bring about quite unexpected and unintended con-

sequences, a syndrome which I and other warned about

during the referendum debates in the ‘Children Amend-

ment’ of 2012, and the ‘Marriage Equality’ referendum

of last year. One of the symptoms of our reduced public

debate is that any attempt to raise the potential com-

plexity and unpredictability of legal instruments is

dismissed by media gatekeepers as either vexatious-

ness or intellectual conceit. Humphreys J’s judgment,

however, makes for a textbook instance of the propen-

sity for legal instruments to bleed into one another,

shifting, double-shufﬂing and doubling back on them-

selves to arrive at entirely unimagined destinations. In

general, this tendency leads to baleful outcomes; here,

Laws of

unintended

coherence

Judge Humphreys recasts the Same Sex

Marriage amendment, turns liberalism

on the right-on, and lifts the rights of

the unborn and unmarried fathers

The case revolved around the

circumstance of the unmarried

father, with otherwise no rights

to remain in Ireland, seeking

to avail of his fatherhood of an

Irish unborn child in order to

remain here – and the extent of

the child's rights

OPINION

by John Waters

September 2016 4 1

in my view anyway, it shows signs of tending in

the opposite direction – extending hope to

some of the most marginalised and disparaged

categories of humanity now subsisting in the

unfriendly territory of the former isle of Saints

and Scholars.

The case, somewhat incongruously, arose

from a rather wearyingly typical speculative tilt

at the asylum process. The case was taken by

a Nigerian man, 'I.R.M.', his female Irish ‘part-

ner’, Sarah Jane Rogers, and their child S.O.M.,

who was born in Ireland last year. I.R.M. came

to Ireland as an asylum-seeker in 2007. He had

been through the asylum process and ulti-

mately been refused. His deportation was ﬁrst

ordered in 2008 but he managed to remain,

and, as well as working illegally here, in 2009

married a Czech national, a union which broke

up within a few months, although the couple did

not divorce. In 2010, the man pursued an appli-

cation to remain here based on his marriage to

an EU citizen. This application failed. In Septem-

ber 2014 he became involved with a

Cameroonian woman, who gave birth to his

child on July 10th 2015. This woman was subse-

quently awarded Irish citizenship. The man was

engaged in a concurrent relationship with the

Irishwoman Sarah Jane Rogers, with whom he

had another child, born a month after the ﬁrst,

on August 21st 2015.

On April 28th 2015, while both women were

in an advanced stage of pregnancy, the Children

Amendment, which had been delayed by a court

challenges, was ﬁnally enacted, becoming Arti-

cle 42A of the Constitution. On May 21st 2015,

a day before the passing of the Marriage Equal-

ity referendum, the man applied for the

revocation of the deportation order against

him, citing his imminent parentage of an Irish

citizen. Following the birth of the child, S.O.M,

to Sarah Jane Rogers, he applied for residency

based on parentage of an Irish citizen.

The case, as Humphreys J noted, had “a com

plex and somewhat unusual procedural

history”, mainly to do with whether or not vari-

ous applications made by the parties ought to

be telescoped rather than dealt with separately,

and also questions relating to the amending of

the Nigerian applicant’s statement and his wish

to remain anonymous.

The judge ruled that both the man and the

child should remain anonymous, but said that

no legal basis of granting anonymity to the

child’s mother had been pressed on him.

The substantive issues arising in the case

related essentially to the lawfulness of deport-

ing the man in view of his – at the time of the

original application – prospective parentage of

an Irish-born child, and whether the proper pro-

cess of deliberating on such an application

ought to consider the rights of the child under

article 40:3:3 as being conﬁned to the right to

life or whether these rights might be more

extensive, and whether, arising from this and

other instruments, the family rights to be con-

sidered might be more extensive also. There

was also a question relating to whether, in view

of the instant proceedings, the man should be

given due notice of the precise date of an inten-

tion to deport him.

Since I’m concerned here with issues that

arose in the context of child and parental rights,

under the Constitution and otherwise, I propose

to glide over the asylum-related details of the

case. The family-related aspects essentially

revolved around the circumstance of the unmar

ried father, with otherwise no rights to remain

in Ireland, seeking to avail of his fatherhood of

an Irish-born child in order to remain here. The

case arises at an interesting moment in the

mutation of the Irish constitutional family, in

the wake of a series of radical and highly ideo-

logical attempts to manipulate the traditional

Humphreys built an ediﬁce

of logic that balanced the

Children Amendmenton

top of Article 40.3.3 to

make visible the full rights

to the 'unborn', and used

the so-called ‘marriage

equality’ amendment to lift

natural parents – especially

unmarried fathers – to a

new and safer ledge

4 2 September 2016

notions of family which have underpinned Bunreacht

na Éireann from its enactment.

Aside from Article 40:3.3, the chief instruments

referred to by Humphreys J. were the 28th, 31st and

34th amendments to the Constitution, these being,

respectively, the ratiﬁcation of the Lisbon Treaty, the

so-called ‘Children Amendment’ and the so-called

'Marriage Equality’ amendment.

The Nigerian gentleman had made his initial applica-

tion while Sarah Jane Rogers was still pregnant with his

child, so that the question of his rights to a family life,

if any, depended to some degree on the extent of the

rights accruing to that as yet unborn child. The Minister

for Justice and Equality argued, with a straight face,

that the only right of the child to be considered under

Article 40:3:3 was the right to be born. The applicant

argued that the Minister was obliged to consider a

much wider portfolio of

rights accruing to a

future Irish

citizen.

Judge Humphreys agreed. There was no reason, he

said, “or even explanation, other than what seems to

be a remarkably deep-seated aversion to acknowledg-

ing the position of the unborn child”, to hold other than

that the child, though unborn, had clear-cut rights

which were both prospective and effective.

The judge repudiated the notion that Article 40.3.3 of

the Constitution could be regarded as the sole reposi-

tory of all the rights of the unborn child, pointing out

that such rights were implicit in several articles of the

Constitution, particularly in Article 40, long before the

enactment of Article 40.3.3. “In addition to these

rights”, he elaborated, “other signiﬁcant rights of the

unborn child are recognised, acknowledged or created

by co- mmon law or statute, in turn reﬂecting inherent

natural and constitutional rights of the unborn which

are implied by the constitutional order. Since we were

all unborn at one point, it is illogical to be dismissive of

the natural, human and biological reality that there is

continuity between the rights to be enjoyed before

birth and those after birth”.

Nor, he emphasised, is the recognition of rights for

the unborn to be regarded as “some peculiarity of Irish

or even of common law”. He pointed out that the UN

Declaration of the Rights of the Child stipulates that

“the child, by reason of his physical and mental imma-

turity, needs special safeguards and care, including

appropriate legal protection, before as well as after

birth”. The judge listed a number of contexts in which

it has long been acknowledged – in both statute and

common law – that an unborn child has rights that are

indistinguishable from any citizen’s – for example,

inheritance rights, rights of action in tort for injuries

sustained while in the womb and the right to litigate

through a parent or guardian. A stillborn child, he

noted, is also deemed by law to be entitled to a name

and identity, notwithstanding not being born alive.

The Minister’s position, Judge Humphrey summa-

rised, was to suggest that Article 40.3.3. had swept

away and superseded all such provisions and previous

constitutional interpretations “to embody in one sub-

section the totality of the rights of the unborn”. He

rejected this interpretation outright. “Even a statute

would not be read this way, and in any event the Con-

stitution should not be read as if it were statutory law”.

Co-opting a 2008 judgment of Irving J, the judge

declared that the Minister’s argument was “entirely

without merit”. The interpretation offered by the State,

he said, “would, as Irvine J points out, at p. 777: ‘place

the rights of the unborn child, from a constitutional per-

spective, at a much lower level than the rights

afforded to the unborn child at common law’”.

Here he nudged Article 40.3.3 up a

few pages and set it beside the

recently-added ‘Children

Amendment’.

OPINION

He dealt with pretty much

all the fears I had about last

year’s amendment by drilling

into its inner logic rather than

focussing on its wording

Justice Richard Humphreys

September 2016 4 3

“In my view”, he said, “an unborn child is

clearly a child and thus protected by Article

42A. Any other conclusion would ﬂy in the face

of the ordinary meaning of language, the use of

the term ‘child’ in numerous statutory contexts

prior to the adoption of Article 42A, and the

sheer social, biological and human reality that

an unborn child is, indeed, a child. Ask any hap-

pily expectant parent”.

The end-point of the State’s logic – “if”, he

qualiﬁed, that was not “an over-digniﬁed term”

– was “either to dismantle constitutional rights

more generally, or alternatively (and this is what

I think is intended) to adopt a bespoke system

of constitutional interpretation aimed at cutting

back the rights of the unborn and only the

unborn…”. The Minister, the judge made clear,

had a responsibility to consider all rights the

child might acquire on birth in whatever deci-

sion-making (relating to immigration) might

arise. He was not suggesting, he made clear,

that these considerations might necessarily

amount to decisive factors on a decision to

deport or otherwise. But they had to form part

of the deliberative process.

Even more interesting was the judge’s treat-

ment of the question of family rights. Although

acknowledging that although, due to the unlaw-

ful and ‘precarious’ nature of the father’s

continuing presence in Ireland, the applicants

might have minimal rights under Article 8 of the

ECHR (family life), the same was not true in

respect of their family situation under the Irish

Constitution. “The response of the State in this

case to this issue – which was that the ﬁrst and

second named applicants enjoyed no rights

under Article 41 because they were not mar

ried, that they enjoyed no rights under Article

8 of the ECHR because their situation was pre-

carious, and that there were no rights of the

child, other than to life, because there was no

born child – was, mutatis mutandis”, he said,

“a submission that would not have been out of

place in the socially-repressive Ireland of the

1950s”.

The judge’s reading of Article 42A , in the con-

text of the rights of the unborn child, is

intriguing and, I would say, unarguable. He

said: “Section 1 of the Article provides that: ‘the

State recognises and afﬁrms the natural and

imprescriptible rights of all children and shall,

as far as practicable, by its laws protect and vin-

dicate those rights’ (emphases added). The

reference to ‘all’ children is striking and gram-

matically unnecessary, and must therefore

have very signiﬁcant substantive content and

intention. As well as smacking of non-discrimi-

nation, on grounds such as the marital status

of parents, it must, in my view, be given a wide

interpretation and should include the child

before birth”.

His perspective on the rights of the father is

similarly creative and irreproachable. He cited

McKechnie J in G.T. v. K.A.O. [2008], on the posi-

tion of the father in an established cohabiting

non-marital family: “…even in the past decade,

such relationships have multiplied and contin-

ued to so do. In any event, where the above

described circumstances exist, could anyone

possibly object to what Finlay C.J. said in J.K. v.

V.W. [1990] where he described such a situation

as ‘bearing nearly all of the characteristics of a

constitutionally protected family, when the

rights would be very extensive indeed’? If, as I

respectfully suggest, our society, which is gov-

erned by a Constitution which declares the

principles of prudence, justice, charity and

human dignity, might in its maturity so agree,

should there not be a greater recognition of the

type of father whom I mention?”.

“Nearly 10 years on from the expression of

that view”, Humphreys J commented, “the

State’s submissions are still mired in the middle

of the last century while its citizens are voting

with their feet and continuing to engage in a

much wider range of family relationships than

the State is prepared to acknowledge as having

constitutional rights”.

Mr Justice Humphreys drew attention to the

massive transformation wrought in Irish law

and the Constitution both arising from our

membership of the European Union and recent

constitutional changes. “Previous decisions on

the lack of rights for the non-marital family are

largely creatures of their time”, he said, “and

society has transformed beyond all recognition

since that chain of authority was put in motion.

More fundamentally, the constitutional frame-

work within which such decisions were

generated has been subjected to massive

transformation”. Not only had we incorporated

into our legislative culture multifarious alterna-

tive perspectives arising from our

implementation of EU law, but the ‘Children

Amendment’, as he had demonstrated, tied us

into guaranteeing the rights of all children,

irrespective of the marital status of their par-

ents. This willy nilly meant that it was no longer

appropriate for the State to divide and decide

between categories of family on the basis of old

prejudices.

Similarly, the judge continued, with the 34th

‘Marriage Equality’ amendment: “The 31st

amendment recognises the natural rights of

‘all’ children, which in context must have par-

ticular reference to the enjoyment of those

rights without regard to the marital status of

their parents. The 34th amendment has

extended the availability of marriage to a range

of same-sex relationships in contexts that

would have been unthinkable when the Consti-

tution was adopted. To regard this as a mere

technical extension of the category of persons

who may marry, rather than a quantum leap in

the extent to which the Constitution is oriented

towards respect and protection for a diversity

of private family relationships, is to artiﬁcially

separate literal wording from history, culture

and society. Any one of these developments,

and certainly all of them taken together, as well

as the fundamental shifts in society since the

adoption of the Constitution, in my respectful

view warrant a recognition that members of a

non-marital relationship, and non-marital par-

ents of both sexes in particular, enjoy

acknowledgement of inherent constitutional

rights in relation to their children and each

other on a wider basis than has been recog

nised thus far”.

It is a breath-taking pronouncement. Mr Jus-

tice Humphreys built an ediﬁce of logic that

balanced the Children Amendment on top of

Article 40.3.3 to make visible the full rights to

the 'unborn', and in the same way used the so-

called ‘marriage equality’ amendment to lift

natural parents – especially unmarried fathers

– to a new and safer ledge, in effect extending

certain categories of unmarried fathers the full

beneﬁts of natural rights and setting them

alongside mothers as equals. In this he dealt

with pretty much all the fears I had about last

year’s amendment by drilling into its inner logic

rather than focussing on its wording.

I fought the ‘Marriage Equality Referendum’

with others on the grounds that the amendment

stood to take things in the other direction, dilut-

ing further the rights of natural parents and

normative but constitutionally unacknowl

edged family categories. I had feared that the

inﬂuence in government and the judiciary of

people like Frances Fitzgerald and Leo Varadkar

might serve to tweak the altered ecology of

family rights to push fathers even further out of

the picture (undoubtedly one of the objectives

of recent legislation and constitutional amend-

ments) but Judge Humphreys' radical rereading

will – unless turned back in its tracks on appeal

– almost certainly result in a totally unexpected

windfall of unenumerated rights for fathers who

Humphreys' radical

rereading will –unless

overturned– almost

certainly result in a totally

unexpected windfall of

unenumerated rights

for fathers who hang in

with their children for an

appreciable period

4 4 September 2016

manage to hang in

with their children

for an appreciable

period of time.

Judge Richard Hum-

phreys is not easily

boxed. A left-leaning lib-

eral who has in the past

been associated with the

Labour Party, as an advisor to

one-time Minister for Justice Min-

ister Mervyn Taylor and later a

Councillor, he seems to ﬁt into the Adrian

Hardiman mould of thinking liberal whose ulti-

mate loyalty is, in perhaps equal measure, to the

integrity of the legal system and the will of the people.

In 2012, he led the masterful attack on government

referendum corruption in the form of the McCrystal

case, in the run-up to the so-called Children Referen-

dum. Insofar as it is possible to divine a mindset

behind his recent judgments, it has the feel of that of

a man who welcomes the drift of recent changes in cul-

ture and law, but also insists that these be accompanied

by consistency, coherence and human values.

It is as though, on the cusp of this much vaunted new

era, he seeks to do his bit to establish at the very outset

the widest possible framework of acknowledgment of

unenumerated rights for unborn children and their par-

ents, and 'born children' and their parents regardless

of marital status, thus counterbalancing the current

mentality infecting politics and the media whereby only

those categories of the human attracting right-on

kudos are worthy of support or protection.

Humphreys J reaches out to those who are truly mar-

ginalised – the child in the womb, the father in the dock

– and draws them in, at the same time dominating the

moral high ground by citing the logic and rhetoric of

‘human rights’ and 'diverse families'. If you pay lip ser-

vice to new ‘families’, he seems to intimate, you can't

be selective. In decency and integrity, you cannot

extend rights beyond the normative without acknowl-

edging the other shifts that have occurred in Irish

society and making them morally coherent at the same

time as you draw the margins inwards.

This judgment, in a sense, sets things out in a way

that, if adopted and pursued in future cases, would

prove my worst fears concerning the SSM amendment

unfounded, and at the same time deliver a goodly por-

tion of the kind of dispensation of fathers’ rights that

I've fought for these past 20 years – thus turning the

politicians’ rights-talk and 'progressive' rhetoric

against their obvious agenda of undermining natural

parenthood and the rights of pre-birth children. If this

judgment is allowed to stand, I will be happy to declare

that Mr Justice Humphreys has proved me wrong. In

effect, he's re-written the Constitution in the wake of

the recent amendments in much the way I might have

done in my wildest dreams.

There is a profound gentleness about the judgment,

an embracing of different entities that are not normally

legally embraced. Words of criticism are reserved for

the State and its representatives, and rightly so. Never

in the history of independent Ireland have we encoun-

tered a minister for justice so implacably hostile to

fathers as the present incumbent, Frances Fitzgerald,

and, as the judge on several occasions intimated, she

appears to have a similar attitude to the unborn child.

Only loud and trendy victim groups, it seems, are

excluded from her hostility.

Reading the judgment, it struck me that, with its dry

description of the circumstances of the instant case,

the deep penetration of its gaze into the changing

nature of modern Ireland, its brushing past the ideo-

logical agendas of the passing moment to a deeper

sense of reason and justice, delving to the heart of the

present in its complexity and precariousness, it repre-

sents a more useful insight into contemporary Ireland

than possibly any novel, poem, book, article, song or

movie likely to see the light of day this year. This is

some achievement in cultural terms, but it is a far

greater one in human terms.

It is, of course, darkly ironic that it should take the

resolve to remain in Ireland of a Nigerian sybarite to

provoke from an Irish judge such a statement of clarity

and decency for Irish fathers and their unborn children.

The conventional line of attack by the misandrists

seeking to suppress any discussion of justice for

fathers in Irish life is to denounce all men as feckless,

dissolute inseminators who have no regard for their

own children. Over two decades of writing about these

issues, I have met at least a thousand fathers who did

not ﬁt this stereotype: good men, who loved their chil-

dren passionately but who in many instances had been

trampled into the dirt by thugs in wigs.

Now, from the south, comes the startling apparition

of I.R.M… a genuine rake, to extract from our judiciary

perhaps the most humane and reasonable family law-

related judgment in many years. And there to greet him,

a judge who looks into everything with the gaze of a

Solomon and the vision of a prophet.

OPINION

If you pay lip service to

'new families', he seems

to intimate, you can't be

selective

Bliss for all

September 2016 4 5

CMY

2014-04-03-Village-Ad-HighRes.ai 1 03/04/2014 20:32