THE SUPREME COURT is to hear an appeal against a High Court ruling directing the Minister for Foreign Affairs to make a decision on a passport application for a boy whose male parents were told a parent is “understood to mean either the mother or father of the child or a male adopter”.

In a written determination the Supreme Court said that the Minister’s application for a direct or leap-frog’ appeal to the country’s highest court should be granted as the case raises important issues of general public importance.

The court, comprised of Ms Justice Elizabeth Dunne, Mr Justice Seamus Woulfe and Mr Justice Gerard Hogan noted that “the question of entitlement to citizenship by descent in the context of surrogacy has not previously been considered by this Court.”

In his judgement last year Mr Justice Max Barrett found that the boy is an Irish citizen under our citizenship law following a challenge over a refusal to issue a passport for him by his parents, referred to as Mr A and Mr B.

The couple are married and living in England with their son, who was born in the UK under its lawful surrogacy arrangements.

When he was born, the boy’s UK birth certificate was issued which recorded the name of his birth mother and Mr B as the father.

Mr B then applied to the England Family Court for a Parental Order under the UK’s Human Fertilisation and Embryology Act 2008, the effect of which they say was to reassign parentage of the child from Mr B and the birth mother to Mr B and Mr A.

Mr A has Irish and UK citizenship while his husband is a UK citizen, which meant Mr A was entitled to apply for a passport for his child.

The boy has UK citizenship, and it is his fathers’ wish that he get an Irish passport.

They applied to the Department of Foreign Affairs and were told in April 2017 that several similar applications had been made and that advice was awaited from the Attorney General.

The following July, the Passport Officer wrote to them indicating the Department intended to refuse the application for a passport on the basis that, for the purposes of the Irish Nationality and Citizenship Act 1956, “a parent was understood to mean either the mother or father of the child or a male adopter”.

The parents made further submissions on the application the office, but ultimately no decision was taken.

This resulted in them bringing High Court proceedings where they sought an order directing the minister to make a​decision and issue the boy a passport.

The minister opposed the application. Justice Barrett granted an order directing the minister to decide.

He found that because the men were regarded as a matter of UK law to be the parents, following their application to the Family Court there, it followed that Mr A, who has Irish citizenship, is now recognized as the other parent for the purposes of Section 7(1) of the Irish Nationality and Citizenship Act 1956, which means the boy has been an Irish citizen since birth.

The judge directed that a decision on the passport application be made but said it did not seem necessary for the court to direct that the minister issue the boy a passport.

That is because if the minister does not appeal the decision, a passport will be issued and if an appeal is lodged, then a stay on the court’s decision would need to be granted.

The Minister asked the Supreme Court to hear a direct appeal against the lower court’s decision.

The Minister’s application was not opposed.

The Minister in seeking to have issues arising out of the High Court’s decision determined that the interests of justice are best served by having the meaning of citizenship by descent, as set out in the 1956 Act determined by this Court so that certainty can be established in relation to its meaning for the purpose of the operation of the 1956 Act and the Passport Act 2008.

The exceptional circumstance in this case, it argued was that it was imperative for the Minister in determining passport applications to know the correct legal meaning of the relevant parts of the 1956 Act.

The Minister had also sought a priority hearing of the appeal.

The Supreme Court agreed that the issues concerning the 1956 Act and issues concerning the European Convention of Human Rights raised in the case met the legal threshold to allow it​ to hear the leap-frog appeal.