RECENT SUPREME COURT JUDGEMENT REGARDING THE BEST INTERESTS OF CHILDREN IN THE CONTEXT OF DEPORTATION DECISIONS
The Supreme Court delivered a judgement in the case of A.Z, M.Z and C.Z (a minor) v Minister for Justice and Equality [2024] IESC 35 on 25th July 2024.
The facts of this case surrounded the deportation order of a man who is the father of an Irish citizen child, and is also married to an Irish national. A challenge was brought by the family against the decision of the Minister not to revoke the father’s deportation order. Judge Phelan found in the applicants’ favour in the High Court and the matter was appealed by the Minister for Justice.
The Supreme Court upheld the decision of the High Court.
Several issues arose in the case, one being whether the Minister’s assessment of the father’s immigration application was in line with Article 42A of the Irish Constitution.
Article 42A was inserted into the Constitution in 2015.
Article 42A.1 states as follows:
- 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.
Sections 2,3 and 4 of the Article are specific provisions as they relate to specific types of proceedings including adoption, custody and access.
Article 42A.1 is a provision of much wider application.
It can be argued that Article 42A.1 recognises and affirms the already pre-existing constitutional rights of children.
Whilst Article 42A.4 is a very specific provision requiring the Minister to legislate for specific types of proceedings, we would say that Article 42A.1 has general application.
Interestingly, in this case, the Minister’s decision in respect of the man’s immigration application contained no reference to Article 42A. In the proceedings, the Minister contended that the Minister had complied with her Constitutional obligations despite no specific reference to the Article being made in the decision.
The Court did not agree with this argument and held that Judge Phelan in the High Court was correct to find that she could not be satisfied, based on careful consideration of the decision, that the rights of the child where properly identified and assessed.
The Supreme Court affirmed the judgment of Judge Phelan which found that following the insertion of Article 42A into the Constitution “effective State protection for the rights of the child now required a greater focus on the child as an individual, separate from the family unit as a whole and not subordinate as part of the family unit. She held that the Supreme Court had found that Article 42A results in some recalibration of the protections which had already been available to children under the other provisions of the Constitution, not least Articles 40, 41 and 42…”
By virtue of Article 42A.1 the Minister is required to identify and assess the individual rights of the child, separate and distinct from the rights of a family as a whole.
It appears to us that the Supreme Court has also held that in the context of deportation decisions, resulting in indefinite separation between a parent and child, the Minister is obliged to consider the best interests of the child as a primary consideration, with each case being decided on its own individual merits. Whilst the Minister must consider the best interests of the child as a primary consideration, there are many considerations the Minister is entitled to have regard to and the requirement that the best interests of the child be a “paramount” consideration is confined to the specific provisions in Article 42A.4.
The full judgements in this case can be accessed below.