Supreme Court dismisses appeal for new birth certificates for witness protection programme participants.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000100

[2025] IESC 44

O’Donnell C.J. Charleton J. Hogan J. Collins J. Donnelly J.

Between/

ROBERT DOE, JANE DOE, ALAN DOE (A MINOR SUING BY HIS

MOTHER AND NEXT FRIEND JANE DOE), BRENDAN DOE (A

MINOR SUING BY HIS MOTHER AND NEXT FRIEND JANE DOE),

CIARA DOE (A MINOR SUING BY HER MOTHER AND NEXT

FRIEND JANE DOE) AND DARREN DOE (A MINOR SUING BY HIS

MOTHER AND NEXT FRIEND JANE DOE)

Plaintiffs/Appellants

-and-

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR

JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY

GENERAL

Defendants/Respondents

Judgment of Mr. Justice O’Donnell, Chief Justice delivered on the 7th day of November, 2025.

1. What is in a name? The significance of a name recognised by the State is the central issue in this case. It is a matter of real importance to the appellants and touches upon some profound questions as to the position of the individual in the constitutional order. The appellants argue that, in what are acknowledged to be the very particular facts of this case, that the first five appellants have a constitutional right to be issued with new birth certificates in the names which they now use and are known by, names they acquired and registered by deed poll with the active assistance and encouragement of the State, as participants in a witness protection programme. The sixth appellant, who was born after the relocation of the appellants, was registered in the host country under the new name of their parents, the first and second appellants, and has a birth certificate in the family’s new name.

2. As even this limited account of the issue suggests, the facts of the case are unusual. The sensitive factual background means that it is necessary to set out the relevant facts at a level of some generality to avoid the risk of inadvertent identification of the appellants, or disclosure of the methodology of the mechanism for witness protection in this country. Furthermore, the claim was initially a broad one, involving a contention that there had been an agreement to provide birth certificates and marriage certificates (“the new certificates”) to the appellants, and that the appellants were entitled to specific performance of that agreement, and/or specific performance of an alleged agreement to set up a dispute resolution mechanism. However, by the time it reached the High Court, the claim had resolved itself into a contention that the failure of the State to provide for the possibility of the issuance of the new certificates breached the plaintiffs’ constitutional rights, their rights under the European Convention on Human Rights (“the Convention”) and under the Charter of Fundamental Rights of the European Union (“the Charter”). The High Court judge referred to these claims as the “constitutional claims” and they remain the focus of this appeal, albeit it appears the appellants no longer press any claim by reference to the Charter.

3. In these circumstances, it is both possible and desirable to state the relevant facts quite briefly. The following account is largely drawn from the judgment of the High Court judge. Prior to general publication this judgment was supplied to the parties to ensure that no identifying information was inadvertently included.

4. The first and second appellants are married and are the parents of the third to sixth appellants. Prior to the birth of the children, the first appellant had provided information to An Garda Síochána regarding the activities of a criminal gang. Thereafter, the appellants were subjected to intimidation and harassment by the gang, including an attempt on the life of the first named appellant, and threats to the second named appellant. The Gardaí and the State accept that there was and is an active credible threat to the lives of the appellants. Steps were taken to protect the appellants, and on a number of occasions they were relocated within Ireland. Ultimately, the first and second named appellants met with representatives of the Commissioner of An Garda Síochána (“the Commissioner”) for an assessment of their suitability for relocation to another jurisdiction under the Witness Security Programme (“WSP”).

5. The WSP was established in 1997 on a non-statutory basis. It responds to attempts by criminals and other groups to prevent the normal functioning of the criminal justice system, including through threats of violence and intimidation of witnesses or those who simply provide information to the Gardaí, even if they do not give evidence in a trial.

6. The practice and procedures of the WSP have evolved through the lifetime of the programme. Given the small geographical area of Ireland, it is always deemed best practice for persons within the ambit of the WSP to be advised that relocation to a foreign jurisdiction must be effected in order to best protect the life of the protectee and associated persons. All persons entering the programme do so in a voluntary capacity and in a fully informed manner, having been provided with the option of independent legal advice. The nature of protection in the WSP is such that restrictions essential for a person’s safety are imposed on persons in the programme to safeguard their security.

7. All decisions regarding the suitability of a person’s entry to the programme rest with the Witness Security Programme Review Group. Financial support and expectations generally differ and are decided on a case-by-case basis grounded on the circumstances of the case, risk, and required protection arrangements. Such supports are considered by ensuring that each is reasonable, justified, proportionate, and necessary. Financial assistance is agreed on a like-for-like basis. This means by reference to the quality of living enjoyed by the relevant person before their entry to the programme. Financial assistance should be no greater than a protectee’s documented earnings or welfare entitlements before admission to the programme.

8. Decisions as to suitability for entry to the programme are supported by psychological assessments of potential protectees. The first and second named appellants had undergone such an assessment. In this case, the process was protracted, and the first and second named appellants suffered significant hardship. They were also required to hand over their identity documents including birth certificates, marriage certificates, PPS cards, driving licences, educational and employment records, and medical records. The first and second named appellants had understood that they would be issued with documents on a like-for-like basis. In the event, the appellants adopted new names and were issued with identity documents including driving licences and passports in those names, but were not issued with the new certificates, and it is this fact which has given rise to these proceedings.

9. The third, fourth and fifth named appellants were born before the first and second named appellants were admitted to the programme, and their names were changed along with those of their parents. Accordingly, their birth certificates are in their original names. The sixth named appellant was born after the other appellants’ names had been changed to the new names which they would use in the jurisdiction to which they were being relocated, and accordingly the sixth named appellant’s birth was registered in the new name of his parents. Accordingly, this claim relates to a claim for a new birth certificate for the first, second, third, fourth and fifth named appellants, and a new marriage certificate for the first and second named appellants. Most of the argument has centred on the birth certificate question. While the evidence and argument laid particular emphasis on the position of the children, on the basis that they had no autonomy in participating in the programme and because of the practical difficulties encountered in relation to school admission, the logic of the appellants’ case was that all members of the family were entitled to birth certificates in assumed names, and in the case of the parents, a new marriage certificate.

10. The appellants were established in another country with the assistance of An Garda Síochána who liaised with the corresponding agency in the host jurisdiction. That agency is available to provide assistance to protectees, and did provide assistance to the appellants. A key difficulty which arose in this case was the requirement which the first and second named appellants encountered when they sought to have some of their children admitted to school, which required the production of a birth certificate for the children. The difficulty was overcome with the assistance of the host agency, but the second named appellant considers that this type of difficulty is unnecessary, unacceptable, and found it very distressing. Indeed, the second appellant’s evidence, unreservedly accepted by the High Court judge, stated that she was “devastated” to learn they would not receive the certificates and that she would not have entered the programme had she known this. She also described being forced to lie to schools about the missing documents as “disgusting” and deeply upsetting. The plaintiffs anticipate encountering similar difficulties in the future.

11. The evidence given on behalf of An Garda Síochána was that it would be helpful if the WSP was able to secure the issuance of a birth certificate (and if necessary, a marriage certificate) in the new identity of the protectee and their family. The evidence highlighted that the absence of a mechanism to issue new or amended birth certificates was considered to be a “major hurdle” in the operation of the WSP. Internal correspondence described that such a facility would be of “enormous benefit”, noting that it would significantly reduce issues and aid in severing ties with previous identities. Furthermore, evidence was given of one jurisdiction which had such a facility, and where the WSP was established on a statutory basis, although evidence was also given from a jurisdiction that operated a witness security programme which did not provide for the routine issuance of new certificates, and where a (non-statutory) witness security programme operated successfully. In the case of the appellants, it was suggested by the respondents, that if absolutely necessary, the Gardaí could produce the original birth certificates to the host agency, but neither the host agency nor An Garda Síochána would wish to take this step normally, in the interests of maintaining the security of the protectees and their family. The appellants maintain that this would not be possible in practice as they believed the host agency is adamant that it did not want any information about the original identity of the protected persons.

12. The claims under the Irish Constitution and under the Convention are broadly similar. It was contended by the appellants that they had an unenumerated or derived right to an official identity record which would accord with their new identity. The trial judge considered the claim as one that the plaintiffs’ constitutional right to protection of the person, consistent with the constitutional value of dignity, was infringed by the failure to provide new certificates. The plaintiffs accepted that there was no general right to identity documents when a person changed their name. However, it was argued that the right to an alteration in an official identity record arose (or the general right of personhood was infringed) when no new certificates were provided in circumstances where:

(i) The person was required to adopt the new name because of a risk to their life if they used their original name;

(ii) That risk was the result of providing assistance to the State in the manner of public interest such as the detection, prevention, or prosecution of crime;

(iii) The risk was indefinite and ongoing;

(iv) The person was coerced by that risk to live under an assumed name as part of a State sanctioned regime for the protection of witnesses.

13. If a right to an official identity record according with a new identity existed (or the general right to protection of the person, read with the value of dignity, was infringed), it was argued that the interference with such a right was disproportionate. That argument arises more naturally if the case is analysed in terms of the more general right which the trial judge considered: if the narrow right exists in the circumstances identified by the appellants, then it would seem to be infringed, indeed, negated by the failure of the State to provide such identity documents.

14. The appellants also argued that their right to equality before the law was infringed. While they accept they are being treated in the same way as other citizens, none of whom can obtain a new birth certificate in a new name, they contend this is indirect discrimination by the application of the same rule to circumstances which are markedly different without regard to those differences. In respect of the children, it was argued that living as part of the WSP was something over which they had no control and therefore could be regarded as intrinsic to their identity. It is fair to say, however, that the bulk of the argument was addressed to the question of the existence of the claimed right.

15. It is accepted that the Civil Registration Act 2004 (“the Act”) does not permit the issuance of substitute or inaccurate certificates, whether of birth or marriage. There is an obligation to register a birth (and a marriage), and the issuance of a certificate is to provide a record of the entry on the register. That entry, in turn, can only be altered in the case of a clerical error or an error of fact. Accordingly, it was contended that the Act itself was unconstitutional. However, since the appellants’ complaint is addressed to the absence of a legislative or other mechanism to provide the certificates (which need not be contained in the Civil Registration Act and is not precluded by any provision of that Act), the appellants’ claim appears to resolve itself to a claim for a declaration that the absence of such a mechanism is a failure to vindicate the Constitutional rights of the appellants.

16. Here, and notably, the appellants’ claim stops short of seeking a declaration of invalidity of the entire Act on the basis that there is nothing offensive to the Constitution in the manner of operation of the Act or the relevant sections on amendment, save, that the appellants contend that the Constitution requires that some further provision should be made to cover their situation. In this case that would be a bespoke provision permitting the issuance of new birth certificates in new names to persons in a witness protection programme and such a provision could be included by way of amendment of the Act or could equally be contained in stand-alone legislation, for example, making provision as a matter of law for a witness protection programme.

17. The use of the term ‘underinclusive’ to describe a particular class of constitutional frailty is more than descriptive. It can sometimes carry with it the suggestion that underinclusive legislation is less offensive to the Constitution, and that it is not necessary to strike down the legislation, which may operate in practice in an uncontroversial, and even beneficial way. Conversely it is sometimes suggested that Courts should be more willing to find an unconstitutionality where the consequence is not the invalidation of generally beneficial legislation but simply a declaration of a constitutional lacuna. However, none of this has been explored in the jurisprudence of this Court in detail and may require closer analysis in an appropriate case.

18. Here the appellants referred to BG v District Judge Murphy [2011] IEHC 445, [2011] 3 IR 748 (“BG”) and Reeves and Lennon v Disabled Drivers Medical Board of Appeal [2020] IESC 31 (“Reeves”) as examples of cases where a finding of under-inclusivity led to the making of a limited declaration rather than a finding of invalidity.

19. It is, I think, important to distinguish between different types of cases. If the argument is that there is a genuine lacuna in the legislation having effect in the State, and that the plaintiff has a substantive constitutional right which has not been addressed but which requires to be provided for by legislation, then it may be appropriate to make a declaration in terms similar to those sought by the appellants in this case. If, however, the claim is made on the basis of the Article

40.1 guarantee of equality before the law as human persons, then the position may not be so clear-cut. The essence of a claim of inequality is that persons in similar situations have been treated differently. If, therefore, a benefit is granted to one group but withheld from another, it may not be possible to separate the two situations and immunise the provision granting the benefit. The fact that the benefit is withheld from a group who are entitled to be treated equally would normally render the provision invalid. That cannot be escaped by employing the language of under-inclusivity.

20. Reeves was a (successful) claim that regulations made were ultra vires the parent Act and did not raise any issue of validity by reference to the Constitution. BG was a challenge to provisions of legislation which did not permit fitness to plead to be determined in the District Court where consent was provided to summary disposal, and the provision was found to infringe the guarantee of equality. However, since the plaintiff had been charged and was awaiting trial, the case fell within the fair trial guarantee of Article 38 and it was possible to hold, following Carmody v Minister for Justice [2009] IESC 71, [2010] 1 IR 635, that the remedy could be limited to providing that the trial could not proceed until provision was made which addressed the plaintiff’s situation. In O’Meara v Minister for Social Protection [2024] IESC 1, [2024] 1 ILRM 437, the Court did make a make a declaration that s.124 of the Social Welfare Act 2005 was inconsistent with the Constitution “insofar as it does not extend to Mr O’Meara as a parent […]” (paragraph 159), while quashing the

decision of the respondent Minister to refuse him the benefit. But the remedy was not the subject of any extended consideration in that case. In the event, it is not necessary to reach the question of remedy in this case, but it may be useful to note that the circumstances in which a Court will make a declaration that stops short of invalidity and which leaves in place provision found to contravene the equality guarantee, may require careful analysis in an appropriate case.

21. Here the challenge is not to the particular provisions of the Civil Registration Act 2004, but rather, to the absence of a provision permitting the grant of a birth certificate in the circumstances of the appellants. If the 2004 Act did permit the issuance of a new certificate in some circumstances but these did not extend to the appellants’ case, then if the Court concluded that the appellants’ claim was well founded, the consequence would normally have to be the invalidation of the provision. Describing the provision as underinclusive would not provide it any form of protection. Description of a challenged provision as underinclusive therefore does not provide a simpler or easier route to success: it raises difficult issues of analysis depending on the nature of the constitutional claim. Here the novelty of the factual situation means that the claim covers a lot of ground and it is conceivable that depending on the argument which succeeded, different remedies might follow.

22. Here the High Court judge dismissed the plaintiffs’ claim. While he accepted that there was a constitutional right to have one’s identity correctly recorded, which he considered to be the effect of the decisions in Caldaras v An tArd Chláraitheoir [2013] IEHC 275, [2013] 3 IR 310 ("Caldaras”) and Habte v Minister for Justice [2020] IECA 22, [2021] 3 IR 627 (“Habte”), he considered that that was markedly different from the plaintiffs’ claim which he characterised as a claim to have an inaccurate record provided. Even if there was such a right, or if a more general right to personhood/dignity was engaged, he considered that the infringement of that right was in pursuit of a legitimate objective and was not disproportionate. The trial judge further held that there was no breach of the equality guarantee.

23. The High Court’s analysis under the Convention was broadly similar. The High Court distinguished the authority relied on by the plaintiffs, and principally Goodwin v The United Kingdom (2002) 35 EHRR 18 (“Goodwin”), in which it had been held that transgender persons were entitled to have their reassigned gender officially recognised. The High Court considered that this right could not give rise to a right to have a birth certificate issued which was inaccurate.

24. By determination made on 18 October 2024 ([2024] IESCDET 120), this Court granted leave to appeal to the Supreme Court, direct from the High Court, pursuant to Article 34.5.4°.

Discussion

25. It is no criticism of the appellants’ legal argument to observe, given the very unusual facts of the case, that the argument is a novel one. It seeks to bring together a number of different strands of constitutional law including equality, the right to life, the value of dignity, the right to protection of the person and an asserted right to personhood, and the decisions in Caldaras, Habte, and Goodwin, to argue that the failure to provide the first to fifth named appellants with new birth certificates (and by extension to provide the first and second named appellants with a new marriage certificate) in the names which they now use and are known by, is a failure to vindicate their constitutional rights and, by the same process of reasoning, is a breach of their rights under the Convention.

26. The appellants emphasise the narrowness of this claim. It is not a general entitlement to a birth certificate in a new name, even when the new name is legally adopted by deed poll, it is only a right for a person who has adopted that name for reasons of personal security, in consequence of a threat to life, and furthermore where that threat occurred as a result of assistance provided to the Gardaí in a criminal investigation, and where that threat is ongoing, and necessitated admission to a witness protection programme.

27. The argument derives some factual support from the fact that it is clear that other countries with similar witness protection programmes and, it is to be assumed, the same commitment to the importance, accuracy and reliability of the Register of Births, can nevertheless provide a new birth certificate to a participant in a witness protection programme. Furthermore, it is apparent that the Gardaí who operate the programme in Ireland consider that if it were possible to issue a birth certificate it would be of assistance to the operation of the programme. In addition, the appellants argue that if the current law is a restriction upon or interference with constitutional rights, then it must be disproportionate, since, it is said, the State Respondent has offered no evidence that any objective of maintaining the existence and integrity of the Register requires that there should be no possibility of the issuance of a new birth certificate even in very unusual and rare circumstances such as this.

28. While the argument invokes a number of broad, sweeping constitutional concepts, at its core it involves a contention that the appellants find the absence of new birth certificates burdensome and offensive, that there is no reason not to make an exception in their case, that the absence of some discretion or flexibility operates harshly and therefore that the absence of legislation permitting the issuance of new birth certificates in this case infringes the constitutional rights of the appellants, which it is the State’s obligation to protect and vindicate.

29. I cannot agree that the particular facts of this case give rise to any valid claim that this Court should find that the absence of some legislative exception from which the plaintiffs can benefit renders the 2004 Act unconstitutional or violates the appellants’ constitutional rights. The appellants’ claim is not one which involves a close reading of precedent and an analysis of the trend of the jurisprudence. Rather it seeks to draw together dicta from a range of disparate cases decided in very different circumstances to lead to an entitlement to succeed in the particular circumstances of this case.

30. The narrowness of the claim advanced by the appellants was presented as a strength of the case. The very limited nature of any exception that would be created was emphasised. But it becomes correspondingly difficult to accept that the Constitution, which guarantees fundamental rights of broad application, should be interpreted to provide for such a narrow and fact specific right. In Landers v The Attorney General (1975) 109 ILTR 1 (“Landers”), the plaintiff was the father of an 8 year old boy with an acknowledged talent for singing, and who, on the evidence could have been engaged to perform in licenced premises if it were not for the provisions of the Prevention of Cruelty to Children Act 1904, and challenged the provisions of the Act which created a criminal offence of allowing a child under the age of 11 to be present on licenced premises or other premises for public entertainment for the purposes of singing, performing, or being exhibited for profit.

31. It was asserted that the provisions of the 1904 Act had not survived the coming into force of the Constitution because they were an interference with the right of the boy to sing in places of public entertainment before he reached the age of

10 years. Finlay J. (as he then was) dismissed the claim observing: “the very narrowness of the right being asserted and its temporary nature appears to me highly inconsistent with the concept of a general personal constitutional right”. The same can be said of the claim as formulated here. The very narrowness of the asserted right, which would be available only to a very limited number of persons, makes it implausible that it is a right to be derived from the rights which the Constitution deems as fundamental to the human person. In Landers, Finlay

J. considered that the relevant right was the broader personal right to prepare for and follow a chosen career but concluded that was not infringed by the provisions of the Act. I consider the same approach should be taken here. It is necessary therefore to consider the broader rights asserted by the appellants, whether they can be derived from the Constitution when not specifically enumerated in it, whether the legislation interferes with that right, and if so whether such interference is justified.

Right to identity

32. The appellants assert a right to have one’s identity officially recorded by the State, relying on Habte v Minister for Justice and Equality Ireland and the Attorney General [2019] IEHC 47, (Humphreys J.), and [2020] IECA 22, [2021]

3 IR 627, (Power and Murray JJ. (McGovern J. concurring)). In particular, the appellants seek to rely on what they describe as a concession made by the Minister in Habte and recorded at paragraph 10 in the judgment of Power J. in the Court of Appeal as follows:- “Citing the Supreme Court decision in Fleming v. Ireland [2013] IESC 19, [2013] 2 I.R. 417, the Minister accepted the ‘general proposition’ that there is an unenumerated constitutional right to have one’s identity accurately recorded. Such rights are necessary to ensure the dignity and freedom of the individual and they inhere in the individual personality which constitutes a vital human component of the social, political and moral order posited by the Constitution. The Minister accepted that this would entail a right to have such State documents as are required to live one’s life with dignity, including a birth certificate and a passport.”

33. Both Habte and Caldaras are unusual cases. In Habte the applicant had been born in Ethiopia. She had obtained a certificate of naturalisation in Ireland which recorded her birth date as the 24 September 1975. Subsequently she obtained a passport with the same date of birth. However, that date was said to reflect the Ethiopian Coptic calendar which was approximately seven years behind the Gregorian calendar so that her birth date in the Gregorian calendar was 4 October 1982. (The Ethiopian birth certificate did record a birth date under the Gregorian calendar of 4 October 1982, and a different birth date, the “24/01/75” under the Ethiopian calendar). The applicant sought to explain the difference between “24/01/75” and 24 September 1975 as being based on the fact that she was born in the Ethiopian month Maskaram, commencing on approximately the 11th of September according to the Gregorian calendar, and is considered to be the first month in the Ethiopian calendar, thus giving rise to the notation “24/01/75”). When the applicant sought to have her passport amended to reflect her birth date in the Gregorian calendar she was informed she needed to have the certificate of naturalisation amended. The Minister refused on grounds that he did not consider that he had power to amend a naturalisation certificate, and subsequently notified the applicant of his intention to revoke the certificate on the grounds that false or misleading information in respect of her date of birth had been submitted on foot of which the certificate of naturalisation had been issued. In fairness to the Minister, it must be said, that it appears that the intention was to revoke the certificate of naturalisation but permit a subsequent application. The applicant challenged the Minister’s decisions.

34. The High Court and Court of Appeal quashed the Minister’s decision relying in part on the authority of Caldaras. In that case the applicant was a Romanian woman described as being from a family of gypsy background and who could not read and write. She had arrived in Ireland illegally and the second named applicant had been born in Limerick in the year 2000. The second named applicant’s birth was registered, and her mother’s name was given as Sorina Cirpaci. The first named applicant had a birth certificate in that name which it transpired was the name of a relative who had lived in the same encampment in Romania. Ultimately, her correct birth certificate was located by her mother, and she was granted a Romanian passport in her own name. She subsequently had five further children, all of whom were registered with her correct name as mother. However, she encountered difficulties obtaining a passport for the second named applicant on the grounds that the mother’s name was shown as Sorina Cirpaci. Ultimately, sufficient DNA and other evidence was produced and the registrar was prepared to accept that Sorina Cirpaci and Maria Caldaras were one and the same person but it was considered that there was no jurisdiction to amend the birth certificate, since it correctly recorded the information provided at birth.

35. Kearns P. while acknowledging the importance attaching to the accuracy of the registrar, quashed the registrar’s decision. His reasoning is set out succinctly at paragraph 30 of the judgment:- “The applicants do not seek to amend the entry so as to reflect any subsequent change in factual circumstances. There has been no such change. The mother’s true name is, and was at all material times, Maria Caldaras. The name recorded on the birth certificate, Sorina Cirpaci, is incorrect. This is so irrespective of whether the mother, at the time of the registration, thought that her name was Sorina Cirpaci. The mother’s mistaken belief cannot change a fact.”

At paragraph 26 of the judgment Kearns P. stated: “[…] I am satisfied that both a parent and a child have the right to have the correct identity of the parent recorded in a child’s birth certificate.”

36. In Habte, both the High Court and Court of Appeal built on the decision in Caldaras. In the High Court, Humphreys J. was prepared to find that there was an unenumerated right to have an identity correctly recorded by the State. In the Court of Appeal, Power J. (Murray and McGovern JJ. concurring) observed that the question of the official record of personal data was a matter held to fall within Article 8 of the ECHR as shown by Goodwin v UK (2002) 35 EHRR 18.

At paragraph 24, she stated that:-

“Whilst the legal issue on personal identity rights in this case is less complex and diverse than those arising in the area of assisted reproduction, the reality, nevertheless, remains that the applicant’s date of birth is an integral aspect of her personal identity. [The judgments of the Supreme Court in MR & DR v An tArd Chláraitheoir [2014] IESC 60; [2014] 3 IR 533, affirm] the importance of maintaining an accurate register of births and recognise this as a prerequisite for the vindication of numerous constitutional rights. [These observations applied], by analogy, to other official records of an individual’s personal data.”

Accordingly, she concluded at paragraph 30 that: “the recognition by the State of a person’s date of birth is engaged both as an unenumerated constitutional right and under the ‘private life’ limb of Article 8 ECHR”.

37. While the judgments in Habte use the language of an unenumerated right, I consider that the same result would be arrived at if the question was addressed as whether it could be said the asserted right was a derived right protected by the Constitution as suggested in Friends of the Irish Environment v Government of Ireland [2020] IESC 49, [2021] 3 IR 1. That approach encourages a closer focus upon, and analysis of, the text and structure of the Constitution. It seems clear that the fundamental personal rights protected by the Constitution necessarily imply a right to have one’s identity recognised, and perhaps authoritatively recorded, by the State. The fundamental importance, in a society based on law where individuals have rights, of having a system which accurately recorded and registered births (and marriages and deaths) was well explained in the judgment of Irvine J. in the intriguing case of Chesnokov v An tArd Chláraitheoir [2017] IECA 19. Such documentation is essential in people’s lives, and in modern society, and required to determine a range of rights and obligations for the holder; running from routine matters such as the driving of a car to criminal capacity. This, as Irvine J. observed at paragraph 12, emphasised the importance of maintaining a register that has real integrity and can be relied on as proof positive of the matters recorded therein.

38. The value to a modern State of having an authoritative system of registration is therefore clear. But that in turn explains why individuals in that society need such a system. A basic part of the structure of the Constitution is the obligation imposed upon the State to guarantee, protect and vindicate the personal rights of the citizen. A building block in that structure is an obligation on the State to recognise the identity of the individual. If a person was not visible to the State, or was not recognised by it, or if their personal identity was treated as fungible, then the position of the individual within the State would be much less than that of the human person whose rights guaranteed by the Constitution are required to be protected by the State. With respect to Humphreys J., I do not consider it is necessary or necessarily appropriate to have regard to international agreements or norms for this purpose, but I nevertheless consider that the

conclusion expressed by him, and endorsed by the Court of Appeal, is correct. The structure of personal rights guaranteed by the Constitution necessarily implies a right to have one’s identity correctly recognised and recorded by the State. It is not in my view necessary to decide if the Constitution protects a separate right to dignity and if so its content, to decide this case. That is something that would require detailed argument, which was not presented in this case. It is well established in the jurisprudence and never questioned, that the Constitution guarantees a right to identity as a right derived from the guarantee of protection of the person.

39. However, that right is of no assistance to the appellants in this case. As the trial judge observed, the right identified in Habte and Caldaras is a right to have one’s correct identity recognised by the State. The emphasis the judgments place on the correct identity of the individual is not an optional element which can be discarded in favour of some broader formulation of a right to have the State recognise an identity of one’s choice. Indeed, it can be said that the very correctness and authoritativeness of the register, the fact that it provides a value neutral datum, upon which reliance can be placed, is what makes registration, and consequent certification, valuable. It is a datum on which the individual, and everyone else, is entitled to rely.

40. It is plain, however, that the appellants cannot rely on this right to obtain the relief they seek in this case. All the plaintiffs have a correct birth certificate and in the case of the first to fifth plaintiffs it has been provided by the State in fulfilment of that right. What is sought is, in many ways, its antithesis: it is an asserted right to a deliberately false statement issued, moreover, as if it were an authentic and correct statement of fact with an implied representation that it can be relied on without more and be backed by the State. It is accepted that no one has a constitutional right to a birth certificate in terms of their own choosing, however sincerely they desire it. The appellants do not assert such a right in general. However, it is argued that on the facts of this case these appellants have such a right not merely by choice or disposition, but rather because it is required by the obligation to vindicate their right to life guaranteed by the Constitution.

The Right to Life

41. The appellants have a right to life and the State by its laws must protect that right and in the case of injustice done, vindicate it: see Article 40.3.2°. In this case there is evidence of a threat to the appellants’ lives which has led to them obtaining a new identity. It is not, however, a threat emanating from the State. Generally speaking, the State protects the right to life of its citizens by having laws in place to protect the person and life of individuals and by having a police force and justice system more generally to enforce those laws. The appellants did not argue that the State was obliged to establish a witness protection programme. If there were such an obligation to take steps such as these to protect individuals, it could not be limited to witnesses or prospective witnesses but would extend to any person against whose life there was a credible threat. It is, however, noteworthy that the State has gone to considerable lengths to seek to protect the appellants from individuals who would harm them. The argument made here in this respect is that the absence of a new birth certificate in their new name gives rise to a risk that attention will be drawn to the appellants’ position, which may in turn lead to their identity becoming known and which might in turn lead to their location becoming known to those who pose a threat to them. However, as observed in the High Court judgment, even within an elaborate witness protection programme, there is the possibility that the identity of a participant in the programme may be compromised; somebody may see them and recognise them by chance in their host country, or a member of the family may return to Ireland even temporarily and be recognised. In my view, it cannot be said that the State must take further steps to protect the appellants by providing new certificates particularly when it runs counter to an accepted important policy of the State in maintaining the integrity of the Register of Births, Marriages and Deaths.

42. The core of the appellants’ argument in fact, rather than law, is not related to the remote risk of identification by hostile actors, in reality, it is rather that the process of assuming a new identity and backstory is made more difficult if there are points of friction where the family have to have resort to the host country representatives and /or the Gardaí when an issue arises, and that the appellants find it offensive to have to resort to lies on such occasions. There was no evidence that the absence of new birth certificates gave rise to any additional risk to the life of the appellants or any of them: rather, it was said that the WSP would operate more smoothly, and the appellants would be spared the frustrations and inconvenience they experienced if new certificates were available. The High Court accepted the sincerity and strength of the second named applicant’s feelings on this issue, but it must be understood in a context where the fact that the applicants now live their lives where a part of their history is fictional and where they may on occasions have to give an untrue account is an unavoidable part of any witness protection program. An individual assumes a new and untrue identity because to tell the truth would put them in danger.

Dignity and the ECHR

43. The fundamental rights protected by the Constitution are guaranteed in the words of the Preamble, so that “the dignity and freedom of the individual may be assured”, the personal rights in the Constitution must therefore be interpreted in that light. It is difficult, however, to see how the invocation of dignity as a separate concept adds anything to the arguments here and already considered in respect of personhood and the right to life. I would accordingly reserve for another case, where the issue could have significance, the question of the meaning to be given to the reference to dignity in the Preamble and whether there can be said to be a right to dignity and if so its content and its limits. The matters referred to by the appellants by reference to dignity are perhaps best considered in the light of the appellants’ reliance on Article 8 of the European Convention on Human Rights, and the decisions in Goodwin and Foy v An t- Ard Chláraitheoir & Ors. (No. 2) [2007] IEHC 470, [2012] 2 IR 1 (“Foy (No.2)”).

44. As is now well known, the decision in Foy (No. 2) followed a significant development in the jurisprudence of the European Court of Human Rights in relation to the position of transsexuals under the Convention, and the conclusion of the European Court of Human Rights that the law in the UK, which treated transsexuals as always having the gender assigned at their birth by reference to sex characteristics, was a violation of their right to a private life under Article 8 of the Convention.

45. In Foy (No. 2), McKechnie J. followed Goodwin and made a declaration that sections 25, 63 and 64 of the Civil Registration Act, 2004 were incompatible with Article 8 of the Convention but acknowledged that the State retained a margin of appreciation as to the most appropriate method of remedying the breach.

46. In the aftermath of the judgment, the Oireachtas enacted the Gender Recognition Act of 2015, which was closely modelled on the UK Gender Recognition Act of 2004, enacted in the aftermath of Goodwin. The structure of the Act was to permit the issuance of a gender recognition certificate leading to an entry in the register of gender recognition (to which access was limited) permitting in effect a new birth certificate showing the person’s new gender, and their new name. The Act provided for the establishment of an index permitting cross-reference of the gender recognition certificate to the original entry in the register of births, but in Article 30D(2) of a new Part 3A to be inserted into the Civil Registration Act, 2004 provided that such index would not be open to public inspection and that no information from that index would be given to any person except by order of the Court.

47. It might be thought that this caselaw provides some support for the appellants in showing that there was no insuperable difficulty in issuing a new birth certificate when that was necessary to vindicate the rights of an individual. It might also be said that by making such a system available to persons who sought and obtained a gender recognition certificate, and denying a new birth certificate to the appellants, the Oireachtas had failed to hold them equal before the law as required by Article 40.1.

48. However, the differences between the two situations are perhaps more telling. It is not, I hope, disrespectful to the intensity of the appellants’ feelings about not having a birth certificate showing their new names to observe that it is of a wholly different order to the circumstances which led both Ms. Goodwin and Ms. Foy to bring their respective proceedings. The claim in Goodwin was not limited to the issuance of a birth certificate. It was a claim that the fact that the law of the United Kingdom at the time did not recognise her as a woman was a violation of her rights under the Convention. The birth certificate was a key to unlocking this but was not by any means the only matter. The Court referred to the fact that since the law continued to treat her as a male, a differential age of retirement applied to her under the laws that then stood, and perhaps most significantly, she could not marry a man as the law then stood. The Court found that this constituted a separate breach of Article 12 of the Convention.

49. In Foy (No.2), McKechnie J. would have found that Irish law was similarly in violation of Article 12 were it not for the fact that at the time, Ms. Foy was a married person. The United Kingdom was not simply refusing to change an initial on a certificate. The law as a whole did not recognise Ms. Goodwin as the person she felt herself to be, and had gone to some lengths to achieve. Thus, the Strasbourg Court at paragraph 91 referred to individuals being enabled to “live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.” Post-operative transexuals were required to live in an “intermediate zone” which was “no longer sustainable” (paragraph 90). Article

8 was considered to give protection to “the personal sphere of each individual, including the right to establish details of their identity as individual human beings” (paragraph 90). That was something that went to the essence of the human personality that the rights protected under the Convention and Constitution are intended to protect. At paragraph 150 of his judgment in Foy (No.2), McKechnie J. said:- “Everyone as a member of society has the right to human dignity, and with individual personalities, has the right to develop his being as he sees fit; subject only to the most minimal of State interference being essential for the convergence of the common good. Together with human freedom, a person, subject to the acquired rights of others, should be free to shape his personality in the way best suited to his person and to his life”.

Even then what was claimed to follow from these fundamental values was something more limited than what the appellants seek in these proceedings. In Foy (No. 2), McKechnie J. (at paragraph 145) considered the claim was to the issue of a new or amended birth certificate to take effect, not from birth, but from the date of her gender reassignment surgery.

50. Second, the nature of what is sought is quite different. In the case of a transgender person seeking a gender recognition certificate, the only changes they require are limited: it involves a change of the initial in respect of gender (in Goodwin and Foy (No.2) from M to F) and a change of the forename (although the 2015 Act does permit a change of both forename and surname). The other details recorded would remain exactly the same. Indeed, this is important to the person obtaining the certificate. However, in the case of the appellants, a new birth certificate would involve wholesale changes, not just to the names of each of the appellants, but also presumably to that of their parents, and conceivably changes to the address and date and place of birth.

51. Furthermore, in the case of gender recognition under the 2015 Act, the essential recording function of the register is still maintained: there is a link between the new certificate, and the old. That would not seem to be feasible in the case of a new birth certificate issued for participants under the WSP. An index of all such cases which would connect the old name with the new, for example, would seem to pose significant security risks.

52. More fundamentally in the gender reassignment cases, the original birth certificate, and the inability to change it, was only part of a range of legal measures which taken together struck in the most profound way at the transgender person’s sense of themselves and who they are and had always been. The issuance of a new certificate can be said not so much as to falsify the record, but rather to record an important truth about the person. The weight of those factors taken together and the degree of impact upon the person’s sense of their essential self, and the very limited departure from the principle of maintaining the record of birth as of the date of registration, is sufficient to override what would otherwise be the important and weighty State interest in maintaining a record of births, marriages and deaths.

53. The same cannot be said of the appellants’ case. They certainly wish to obtain new birth certificates to facilitate their new identities and to make it easier for them to live under their new names. A new birth certificate, would at best, make it somewhat easier for them to maintain the false identities and backstory that they have been assisted by the State in creating, but, on the evidence, the absence of such a birth certificate has not prevented them, or it appears anyone else, from doing so.

54. At some very general level it may be said individual autonomy extends to the

decision to change one’s name. That is not precluded by Irish law, indeed it is permitted and facilitated by the deed poll procedure. But it cannot be said that an individual’s wish to have their birth certificate altered (or a new one issued) to align with their new name is sufficient to outweigh the obvious State interest in an authentic, accurate, and reliable register. The appellants’ interest in seeking a birth certificate is driven by considerations of the efficacy of the WSP and to more fully facilitate the appellants’ adoption of a new name and identity, but, and with respect, that interest cannot be said to be on the same level as the interests such as those at play in Goodwin and Foy (No. 2). While at a superficial level these cases do concern an entitlement to obtain a new birth certificate and thus appear similar to this case, any analysis of the reasoning in those cases undermines rather than supports the appellants’ argument.

55. Participation in a witness security programme can raise real issues for individuals and can create real stresses. It also appears possible from the evidence of other jurisdictions to provide for a system under which new birth certificates can be issued. The Gardaí operating the system would, it seems, welcome that facility. There are, therefore, arguments of practicality and policy which might lead the Oireachtas to decide to create a mechanism for the issuance of birth certificates to the participants in a WSP, but those considerations of policy and practicality are matters for the Oireachtas, and do not rise to the level at which it can be said that it is required either by the Constitution, or by the Convention. I would dismiss the appeal.