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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

What 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 subtleties 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-inducing 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 amendments can interact with legal judgments old and new to bring about quite unexpected and unintended consequences, a syndrome which I and other warned about during the referendum debates in the ‘Children Amendment’ 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 complexity and unpredictability of legal instruments is dismissed by media gatekeepers as either vexatiousness or intellectual conceit. Humphreys J’s judgment, however, makes for a textbook instance of the propensity for legal instruments to bleed into one another, shifting, double-shuffling and doubling back on themselves to arrive at entirely unimagined destinations. In general, this tendency leads to baleful outcomes; here, 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 ‘partner’, 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 ultimately 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 application to remain here based on his marriage to an EU citizen. This application failed. In September 2014 he became involved with a Cameroonian woman, who gave birth to his child on July 10th 2015. This woman was subsequently 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 Article 42A of the Constitution. On May 21st 2015, a day before the passing of the Marriage Equality 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 complex and somewhat unusual procedural history”, mainly to do with whether or not various 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 deporting the man in view of his – at the time of the original application – prospective parentage of an Irish-born child, and whether the proper process 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 considered 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 intention 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 unmarried 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 ideological attempts to manipulate the traditional 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 application 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 acknowledging 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 repository 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”.

Justice Richard Humphreys
Justice Richard Humphreys

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 immaturity, 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 summarised, was to suggest that Article 40.3.3. had swept away and superseded all such provisions and previous constitutional interpretations “to embody in one subsection 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 Constitution 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 perspective, 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’.

“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 happily 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 decision- 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 treatment of the question of family rights. Although acknowledging that although, due to the unlawful 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 married, that they enjoyed no rights under Article 8 of the ECHR because their situation was precarious, 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 context 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 vindicate those rights’ (emphases added). The reference to ‘all’ children is striking and grammatically unnecessary, and must therefore have very significant substantive content and intention. As well as smacking of non-discrimination, 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 position of the father in an established cohabiting non-marital family: “…even in the past decade, such relationships have multiplied and continued 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 governed 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 framework within which such decisions were generated has been subjected to massive transformation”. Not only had we incorporated into our legislative culture multifarious alternative 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 parents. 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 particular 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 Constitution 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 parents 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 recognised thus far”.

It is a breath-taking pronouncement. Mr Justice 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 focusing on its wording.

Bliss for all
Bliss for all

I fought the ‘Marriage Equality Referendum’ with others on the grounds that the amendment stood to take things in the other direction, diluting further the rights of natural parents and normative but constitutionally unacknowledged 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 amendments) 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 manage to hang in with their children for an appreciable period of time.

Judge Richard Humphreys is not easily boxed. A left-leaning liberal who has in the past been associated with the Labour Party, as an advisor to one-time Minister for Justice Minister Mervyn Taylor and later a Councillor, he seems to fit into the Adrian Hardiman mould of thinking liberal whose ultimate 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 Referendum. 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 culture 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 parents, 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 marginalised – 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 service to new ‘families’, he seems to intimate, you can’t be selective. In decency and integrity, you cannot extend rights beyond the normative without acknowledging 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 portion 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 encountered 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 ideological 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 represents 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 children 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 lawrelated 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.

By John Waters