A, B and C (A Minor Suing by His Next Friend, A) v The Minister for Foreign Affairs and Trade

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian Murray,Mr. Justice Gerard Hogan
• Judgment Date: 09 May 2023
• Neutral Citation: [2023] IESC 10
• Docket Number: S:AP:IE:2022:000014
• Court: Supreme Court

Between

A, B and C (A Minor Suing by His Next Friend, A)

Applicants/Respondents

and

The Minister for Foreign Affairs and Trade

Respondent/Appellant

and

The Irish Human Rights and Equality Commission

Notice Party

[2023] IESC 10

Dunne J.

Charleton J.

Woulfe J.

Hogan J.

Murray J.

S:AP:IE:2022:000014

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Asylum, immigration & nationality – Citizenship – S 7 of Irish Nationality and Citizenship Act 1956 – Foreign order recognising parenthood of one parent post birth

Facts: The applicant (C) was the genetic son of B, who was later married to A in a same sex relationship. An English court order had recognised that A was not the parent of C at the time of C’s birth but now was recognised as such. The issue before the Court was the effect of s 7 of the Irish Nationality and Citizenship Act 1956 in this novel factual situation. The High Court had found for the applicants, holding that C was an Irish citizen, and leave to appeal had been granted by the Supreme Court in [2022] IESCDET 41.

Held by the Court, that the appeal would be allowed. Murray J. gave a judgment in which Dunne J., Charleton J. and Woulfe J concurred. The Court was persuaded that the English parental order could be recognised in private international law by the State. However, considering the provisions of s 7, the Court with reluctance concluded that C was not entitled to Irish citizenship in the present factual circumstances. The appeal would be allowed to the extent that A had been held to be C’s parent as the term applied for the purposes of s 7.

JUDGMENT of Mr. Justice Brian Murray delivered on the 9 ^th day of May 2023

Introduction

1 . This appeal raises novel and complex questions of law. They all come back, directly or indirectly, to the meaning of s. 7(1) of the Irish Nationality and Citizenship Act 1956, as amended, (‘ the 1956 Act’). That provision states that a person is an Irish citizen ‘ if at the time of his or her birth either parent was an Irish citizen’. The issue is whether the effect of this subsection is that the third applicant, C, is an Irish citizen because the husband (A) of C's genetic father (B) is an Irish citizen. It arises in a context in which, by virtue of an order of the courts of England and Wales (where A, B and C are domiciled) A and B are now C's parents, but in which A was not C's parent at the time of C's birth. Irish law provides no bespoke mechanism for the recognition of foreign court orders of this kind.

2 . The applicants say that at the time C was born, A was an Irish citizen. They contend that A must now be recognised here as C's parent by virtue of the order of the English court in the light of the Irish rules of private international law. Accordingly, in their submission, the statutory preconditions to C's Irish citizenship are met: A is C's parent and A was an Irish citizen at the time C was born.

3 . The respondent to the proceedings (being the appellant in this appeal, and to whom I will refer throughout this judgment as ‘ the Minister’) says in response that the reference to ‘ parent’ in the provision is to a genetic father and the woman who gave birth to the child in question. He says that this is reflected in the language of the section insofar as (the Minister contends) it requires that in order for an Irish citizen to pass citizenship by descent that person must be both a citizen, and the child's parent, at the time of his or her birth. Even if A is now C's parent in Irish law generally, the Minister argues, he was not C's parent at the time of C's birth and, therefore, the fact that A was an Irish citizen at the time of C's birth does not result in C being an Irish citizen.

4 . Essentially, these conflicting interpretations of s. 7(1) reduce themselves to whether s. 7(1) refers to ‘ parent’ only in this narrow sense urged by the Minister or whether (as the applicants argue) it uses the term so as to include persons who become parents after the birth of a child by virtue of a court order or rule of law.

5 . The applicants sought to bolster their argument by reference to both the Constitution and the European Convention on Human Rights (‘ ECHR’). They deployed the so-called ‘ double construction rule’ – the principle that if two interpretations of a statutory provision are reasonably open, one of which would render legislation contrary to the provisions of the Constitution and one of which would not, the court should adopt the ‘ constitutional’ interpretation of the Act. They also rely upon a similar interpretative obligation under the European Convention on Human Rights Act 2003 (‘ the 2003 Act’) and advance the claim that having regard to s. 6 of the Interpretation Act 2005, s. 7(1) should be given what they describe as an ‘ updated’ meaning. They say that the construction of the 1956 Act urged by the Minister would render s. 7(1) inconsistent with both the Constitution and ECHR in discriminating between (and in failing to protect the rights of) different types of constitutional families, as well as by discriminating between children based upon their parenthood, and/or between heterosexual and same-sex couples.

6 . In this way, five distinct legal issues fall for consideration:

• (i) whether the parental order made by the English court is capable of recognition in Irish law?

• (ii) if so, whether A is C's ‘ parent’ as that term was intended to be understood in s. 7(1)?

• (iii) if not, whether the section will ‘ bear’ the meaning urged by the applicants so as to enable the ‘ constitutional’ or ‘ ECHR compliant’ interpretation for which they argue?

• (iv) if not, whether the court can or should give s. 7 an ‘ updated’ meaning mirroring that contended for by the applicants, having regard to s. 6 of the Interpretation Act 2005?

• (v) if so, whether the interpretation urged by the Minister would, in fact, be inconsistent with the Constitution and/or ECHR for any of the reasons advanced by the applicants?

The facts

7 . A, B and C are residents of, and domiciled in, England. B is a British citizen, while A is an Irish citizen from birth. A also holds British citizenship. In 2012, A and B entered into a civil partnership in the United Kingdom. They married in 2021. The effect of s. 9(6) of the Marriage (Same Sex Couples) Act 2013 (an Act of the United Kingdom parliament) is that under the law of that jurisdiction their marriage is to be treated as having subsisted since the date on which their civil partnership was formed.

8 . C was born in England in April 2015 by way of gestational surrogacy. He was conceived using embryos created by eggs provided by an anonymous (but traceable) donor inseminated with sperm from B. The resulting embryos were transferred to the uterus of D. Subsequent to C's birth, a United Kingdom birth certificate was issued which recorded D as C's mother, and B as his father.

9 . Then, in July 2015, A and B successfully applied to the Central Family Court in London for a parental order in respect of C pursuant to s. 54 of the Human Fertilisation and Embryology Act 2008 (also an Act of the United Kingdom parliament). At the relevant time, that provision enabled such parental orders to be made in respect of a child in favour of, inter alia, those in a same-sex relationship, or two persons living as partners in an enduring family relationship and not within the prohibited degrees (s. 54). 1 It applied if the child had been carried by a woman who is not one of the applicants as a result of the placing in her of an embryo or sperm and eggs, or her artificial insemination, and the gametes of at least one of the applicants were used to bring about the creation of the embryo. Before making such an order, the court had to be satisfied that the woman who carried the child had freely and with full understanding of what was involved agreed unconditionally to the making of the order. It also had to be satisfied that the order was in the child's lifelong best interests.

10 . The order was granted on 21 July 2015. Under English law, the effect of that order was to reassign parentage of C from B and D, to A and B. The order thus operated to extinguish D's

parental rights. 2 A revised birth certificate was thereafter issued for C recording A and B as C's parents. A and B also have a second child (E). E is the genetic son of A and was born following a similar surrogacy arrangement with D, using the same donor as for C

11 . In early 2017, A and B applied to the Minister for a passport in respect of C. Section 7 of the Passports Act 2008 provides that before issuing a passport, the Minister must be satisfied that the relevant person is an Irish citizen. A and B contended that in the light of s. 7(1) of the 1956 Act, C was an Irish citizen because A was his parent, and by reason of A's Irish nationality. In the course of subsequent correspondence from the passport and visa office at the Irish Embassy in London, A and B were advised that the Department of Foreign Affairs and Trade intended to refuse the application for a passport for C, as (it was said) a ‘ parent’ for the purposes of s. 7(1) was understood to mean either the ‘ mother’ or ‘ father’ of the child. The application still not having been determined in July 2020, these proceedings were instituted. The applicants sought an order of mandamus directing the Minister to make a decision as to whether to issue an Irish passport in respect of C, and an order directing the Minister to issue an Irish passport in respect of C. Various ancillary declaratory reliefs were also sought, including orders that the refusal of the Minister to issue a passport in respect of C constituted a failure on his part to exercise his functions in a manner compatible with the ECHR in the manner required of an ‘ organ of the State’ by s. 3(1) of the 2003 Act.

12 . For reasons explained in a reserved judgment ( [2021] IEHC 785),...