It is clear that the rights of the family under the Constitution are real,not rhetorical, and are extensive in character. The recent Supreme Court decision on the residency rights of non-EU parents of children born here goes against values at the heart of our Constitution, argues William Binchy.
Rarely in their professional lives, judges face decisions which call on them to exercise a prophetic role. In the recent Supreme Court judgment on the residency rights of non-EU parents of children born in this State, only two of the seven judges appear to have recognised that the case before them was one of those instances.
The five judges in the majority analysed the issues with high technical competence. They interpreted the earlier Supreme Court decision of Fajujonu narrowly, and surrendered to the Government and civil servants a vast acreage of discretion to expel possibly thousands of families into situations of uncertainty and, in some cases, potential danger.
I believe that the majority failed to give life to the values that are at the heart of our Constitution. Respect for the unique and equal dignity of every individual and for the importance of the family in society underlies the philosophy of the Constitution. It is the task of the judiciary to ensure that the Government and the Oireachtas do not act in a way that fails to respect the individual and the family.
Thirty years ago, Mr Justice Walsh, in the McGee case, observed that Articles 41 to 43 of the Constitution: "emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights inferior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection.
"The individual has natural and human rights over which the State has no authority; and the family, as the natural primary and fundamental unit group of society, has rights as such which the State cannot control."
It is clear that the rights of the family under the Constitution are real rather than rhetorical and that they are extensive in character. They are sufficiently powerful to inhibit some initiatives by the Oireachtas or the executive, even when these initiatives are inspired by concern to protect or advance the common good.
The problem with the Supreme Court's analysis of the Constitutional provisions relating to the family over the years is that the court has shown itself willing to invoke these provisions in cases where it frankly seems mistaken to do so - and to fail to invoke them in cases, such as this, where that failure will inevitably result in serious damage to thousands of families.
Ten years ago, the Supreme Court struck down a modest and sensible Bill providing for joint ownership of the family home on the basis that it interfered with the autonomy of family decisions. (The Oireachtas still has not had the courage to risk a further judicial rebuff and the law has been left unreformed.)
Two years ago the Supreme Court again invoked family autonomy in holding that married parents might refuse to permit the PKU test to be administered to their infant child even where this decision was a medically mistaken one which exposed the child to unwarranted risk. (The potential anomalies arising in relation to decision-making by unmarried parents have yet to be widely publicly acknowledged.)
It is hard to interpret the majority's decision last Thursday week other than as being based on the view that children born in Ireland whose parents are asylum-seekers or illegal immigrants are not as entitled to the protection of the family provisions in the Constitution as other children of more conventional social profile.
If a law were enacted providing for (let us imagine) the compulsory adoption of Irish-born children of foreign senior executives working in multinational companies here without the requirement of stringent proof of parental failure of duty towards their children, as the Adoption Act of 1988 prescribes, there would be an understandable chorus of dissent. The argument against such legislation would be based on the family provisions of the Constitution.
Yet in the case of Irish-born children of asylum-seekers, the fact that their parents have either not complied with certain provisions of our immigration code or have not succeeded to the satisfaction of those who adjudicate asylum applications (at first instance and on appeal) is considered reason enough to permit the State to deport the parents, causing inevitable damage to the rights of the children as members of a constitutionally protected family.
The Supreme Court has yet to come to any considered conclusions on the territorial remit of the constitutional provisions relating to the family. In Fajujonu, the birth of a child in Ireland was given seemingly crucial significance, yet Article 41 embraces a philosophy which does not restrict the rights of families to those with a birth connection with Ireland. Indeed, in one High Court decision in 1981, Mr Justice Hamilton was willing to extend the protection of the Constitution to an English family who had come to Ireland to avoid the application in English adoption law.
HE considered that it would be "inconceivable" that the child's father would not be entitled to rely on Article 41 of the Constitution. Wherever the threshold of eligibility for protection of the family provisions is to be drawn, it should not result in a grudging concession of such fragility that it can easily be defeated by executive considerations.
The majority's decision is yet another example of the deference to executive power which has characterised the Supreme Court judgments of recent years. There are arguments for some judicial restraint in relation to economic prioritisations by the legislature and executive (though I believe that the court has carried that restraint too far).
Where the fate of asylum-seekers and their families is in question, we confront a more stark issue of human rights. No one can be sure that the adjudication process for asylum applications is infallible. The effect of the court's decision is to remove a bulwark against the risk of deporting children who fall within the protection of the family provisions of the Constitution, together with other members of their families, to situations where they confront a risk of persecution that is, in the words of the Geneva Convention, "well founded".
William Binchy is Regius Professor of Law at Trinity College, Dublin