As the debate about the forthcoming Children’s Referendum commences, those who oppose the change have begun arguing that the amendment will allow the State to swoop in and snatch children from the arms of their loving parents – this despite the explicit requirement in the proposed amendment for “proportionality” when decisions are being made about the safety and welfare of the child. That requirement means that the courts will be obliged to balance the various “natural and imprescriptible rights of all children”. Even after the amendment is (hopefully) made, these will continue to include, amongst other things, the rights of the children to the care of their married parents, which are protected via the Constitutional protections offered to the “family.” Even if it comes to pass that the “best interests of the child shall be the paramount consideration” in cases concerning the rights of children, those who are cautious about the change may find comfort from the fact that past form in Ireland’s higher courts indicates that it is extremely unlikely – impossible in fact – that those interests will simply trump other rights, or that they will be considered in a vacuum.
A case in point is the cautious balancing of rights and interests that has characterised High Court decisions about the rights of Irish citizen children to the care of their non-EEA parents, when one or both of those parents is threatened with deportation.
A recently-published decision of Hogan J in the High Court (EA & PA (infant & father) v Min for Justice, 7th September 2012) reviews the evolution of case law in these decisions in recent years, and goes some way to clarifying the current position. In cases like this, the question of proportionality arises as the court weighs the right of the state to protect its borders against that of the children to the care of their parents. In this decision, Mr Justice Hogan states that:
“While the preservation of the integrity of the asylum system and, indeed, the integrity of the judicial process are of vital importance, in matters of this kind the court must, where possible, give primacy to the constitutional right of the child to the care and company of his parents in the manner envisaged by Article 42.1 of the Constitution.”
This statement reveals a significant turnaround. Until very recently, the trend was for the courts to give primacy to the rights of the state to maintain the integrity of the asylum system. An decision of Mr. Justice Hogan of January 2012 is among those in which a sea change became evident. In AO (No. 2) residency was also granted to the non-EEA parent, in the context of Article 42 of the Constitution and the primacy of the family. Though not defined in the Constitution, Irish Courts have long since established that the “Family” referred to in Article 42 means the family based on marriage (The State (Nicolaou) v. An Bord Uchtála [1966]). In AO (No .2) the learned Judge bases his decision on the primacy of the married family under the constitution, but hints at his dissatisfaction with this state of affairs: “I would merely add that the active involvement of both parents in child-rearing is also inherently desirable from the child’s perspective, even if the parents are not married, assuming always that this is feasible and practicable.”
The proposed Constitutional amendment would presumably ensure that the benefit of analyses like these is extended in all cases, even to the children of unmarried parents.
Of course, as far as the deportation of the parents of Irish children is concerned, it was widely assumed that the by now renowned 2011 ECJ decision in Ruiz Zambrano had already extended the right to the company of their non EEA parents to Irish citizen children living in Ireland – regardless of whether their parents were married or not. Unfortunately however, the decision in EA & PA and Mr. Justice Hogan’s earlier decision of January 2012 (A.O. (no.2)), makes it clear that a distinction is to be drawn between the right of the citizen child to the company of his parents, and the right of that child to the company of his parents in Ireland.
The Zambrano decision held that:
“Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
Clearly, as Mr. Justice Hogan points out, the right of residence of the non EEA parent is limited in Zambrano to cases in which his or her deportation would “deprive [his/her] children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.” The Zambrano decision states that “a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.”
Despite this, the exact nature of the “substance” of the citizen’s rights has been contested terrain in Ireland ever since Zambrano. Mr Justice Hogan has taken care to define the nature of the “substance” of the citizen child’s rights as narrowly as possible. Essentially, this case appears to limit the right of residence of the parent of an Irish child to cases where the family is not able or cannot be expected to relocate to the country of origin of the parents as a unit. In other words, the judgement seems to be saying that, if the citizen child is forced to leaveIreland as part of a family unit, he will not be taken to have been denied the substance of the enjoyment of his rights as a European citizen. It is difficult to see how this can accord with the decision in Zambrano, and it remains untested whether the ECJ would agree.
The Zambrano decision was widely welcomed by migrants and their advocates, as it appeared to correct previous High Court decisions which had seen the High Court order the deportation of the parents of Irish citizen children, perhaps most notably the 2009 decision of Clarke J in Alli. As always, the Court was obliged to weigh the applicants’ rights (to family life, under the Constitution and the ECHR) against the rights of the State (to control immigration) and to reach a reasonable and proportionate decision. In Alli, it was held that the legally resident mother of an Irish citizen child would not be unduly inconvenienced if her husband was deported, on the basis that she had managed fine without him for three years previously.
In EA & PA, Mr. Justice Hogan acknowledges that subsequent case-law has “inched away from the position set out in Alli”, and indeed that subsequent decisions “cannot be readily aligned” with it. Ms. Justice Clarke herself decided in S that “The balance in this case must fall in favour of the family’s strong constitutional rights to live in the country of their citizenship. Their position as settled migrants represents the other side of the coin in the insurmountable obstacles test under Article 8 of the ECHR where it would be unreasonable and therefore disproportionate to expect this family to either live forever without the husband and father or to leave Ireland and return to Nigeria.”
Clearly, the balancing of immigration control against the rights of the members of families that include Irish citizens has shifted in favour of families over the last few years. Although the ECHR has begun to have its influence (see S above), the most significant influencer here remains the Constitution. Mr. Justice Hogan interprets the ECJ decision in Zambrano very restrictively indeed. Similarly, he states that while “it must be recalled that while Article 8 ECHR simply guarantees the right “to respect” for family life, some weight must be given to the even more emphatic description of family rights contained in Article 41 – “inalienable and imprescriptible” – even if those rights are not, of course, to be regarded as absolute.” In that context, “faced with a choice between [irreconcilable] decisions … I would respectfully opt for the latter decisions, at least in those cases where the effect of the deportation order would be to split up the family and to deprive the children of the essence of their constitutional rights to the care and company of their parents by condemning them to a childhood without one of their parents.”
Our constitution remains by far the most important influence on crucial decisions that are made in our higher courts. It would appear, certainly in decisions that are being made about the future of citizen children whose parents come from outside the EEA, that the family has resumed its rightful place at the centre of decision-making. The proposed amendment promises to ensure that the “best interests of the child shall be the paramount consideration”. This will be of particular benefit to those children who are not part of a traditional family. Fears that it will lead to the displacement of the family unit as the balance of rights is considered seem very misplaced.
Principal, Claire McCarthy Solicitor
