Irish Supreme Court finds meaning of ‘child’ does not include non-biological child for the purposes of family reunification

The Irish Supreme Court has granted the Minister for Justice’s appeal in overturning a finding of the High Court that the word ‘child’ in the International Protection Act 2015 extends beyond a biological and adopted child in family reunification cases.

The case concerned Mr X, an African man who was granted subsidiary protection in 2014. He applied for family reunification of two teenage children he claimed were his. He was able to provide birth certificates in which he was identified as their father, and a court order appointing his as their sole legal guardian. His application, however, was rejected as he refused to take part in a DNA test out of fear that the mother of the children may have been unfaithful.

Justice Max Barrett in the High Court found in Mr X’s favour, stating that the definition of a ‘child’ in the 2015 Act was not confined to a biological relationship. Justice Elizabeth Dunne, on behalf of the Supreme Court, however, looked at the wording of section 56(9) of the 2015 Act and found, ”it very hard to understand how the phrase ‘child of the sponsor’ can be read as including a relationship of father/child where that relationship is not a biological/adoptive relationship“. The Court was of the view that this was reinforced by the legislative history of the Act which, rather than introducing a broader meaning of the word ‘child’ in section 56, the overall effect was “restrictive in terms of those to whom family reunification could apply”.

Judge Dunne believed this case created “serious doubt” as to the paternity of the children, which made it appropriate to request a DNA test. The Minister was entitled to draw inference from the refusal to participate and refuse the application. Judge Dunne observed that resorting to DNA testing should be limited to cases of “serious doubt” and recognised the implications of such testing on privacy rights.

Judge Dunne further held that Mr X had no vested rights under the 2013 Regulations, which provided a wider definition of family member, as they were repealed by the 2015 Act.

Click here for the decision.

Click here for a previous PILA Bulletin article on the High Court decision.



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