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High Court - Unmarried father loses removal of children case 

MARY CAROLAN

Thu, Apr 29, 2010

THE HIGH Court has rejected a challenge by a man to the legality of the removal by his former partner of their three children to England to live. The taking of the children to England by the woman, with whom he had a 10-year relationship, was described by the court as “reprehensible”. The British courts will now determine an application by the father for guardianship, custody of and access to his three children aged two, seven and nine. 

The judgment of Mr Justice John MacMenamin highlights the lack of laws here dealing with the rights of unmarried fathers and the absence of recognition in Irish law of a “de facto family” not based on marriage.

The mother’s removal of the children in July last year just weeks after terminating her relationship with the father did not breach his rights under Irish law and was not wrongful within the terms of the Hague Convention on Child Abduction and/or the relevant EC regulation (the Brussels Regulation), the judge ruled yesterday. 

The law protected those who held custody rights and, because the father had not exercised his right to apply to the District Court here for guardianship, custody or relocation of the children during his relationship with the mother, he had no right under Irish law to custody or access, the judge said. An unmarried father had no automatic rights of guardianship but was only entitled to apply to court for guardianship, custody and access.

The judge said he was bound to follow the decision of the Supreme Court that there was no institution in Ireland of a “de facto family”. This meant this unmarried father only had the right (which he had not exercised) to apply to the District Court to have his right to guardianship, custody and access determined and had no other right. 

As both the Hague Convention and Brussels Regulation clearly stated the removal or retention of a child was wrongful only if it breached rights of custody which had been exercised or would have been exercised were the children not removed, the man also had no rights of custody within article 5 of the Hague Convention as complemented by the Brussels Regulation.

The judge further rejected arguments that the children’s removal breached the man’s family rights under Article 8 of the European Convention on Human Rights.

The father’s failure to seek custody here also meant European cases and UK cases referred to did not assist his case. Had the man exercised his right to apply for custody, the outcome of his case could have been “radically different”, the judge remarked. 

While the man had alleged his former partner deliberately evaded service of custody proceedings initiated by him some 10 days before she and children went to England, the judge said there was no independent evidence to support that claim and it was clear she had stayed in a women’s refuge for a few weeks before leaving for England.Service of the District Court proceedings would have given the court “custody” of the children with the result their removal from Ireland would have been unlawful, he noted. The children’s mother had accepted, whatever about her relationship with the man, that he had been a good father.

She said her intention in removing the children was because she feared his conduct would affect their wellbeing. 

Mr Justice MacMenamin said it was a matter for legislators and for committees supervising the operation of the Hague Convention and the Brussels Regulation “to ensure the law evolves in such a manner as to keep pace with social change”. 

BACKGROUND RELATIONSHIP APPEARED ‘RATHER UNSTABLE’: 

Mr Justice MacMenamin noted that the man and woman met in 1999 and had three children. The woman had two other children, one of whom lived with her while the other remained with relatives. The couple lived here and in other countries before returning to Ireland in 2008 until the woman and children left in July 2009. The woman alleged the couple’s relationship was unhappy and unstable and the man was violent, possessive and jealous. The man alleged she was erratic and irresponsible. The judge said the relationship appeared “rather unstable” but said the man denied he was violent to the woman.

The judge noted that the relationship improved for a time when the couple agreed to get married but that did not proceed after the woman later suggested the man was marrying her only to become joint guardian of the children. 

She said she decided to move to England after allegedly finding him drunk in charge of the children. 

© 2010 The Irish Times

No 'de facto' family in Ireland  for unwed father

J McB -v- L E Neutral citation (2010) IEHC 123 High Court  

Judgment was delivered on April 28th, 2010, by Mr Justice John MacMenamin  

Judgment

An unmarried father of three who had not applied for guardianship of his children did not have legal custody, and therefore could not seek under the Hague Convention on Child Abduction to have them returned from the UK to which they had been taken by their mother without his consent. 

Background 

The couple met in 1999 when the father, who is Irish, was living in England. The mother, who is English, was 20, and had two children from a previous relationship. The older of these lived with her grandparents and the younger with his mother, where he was reared as a member of the family along with the children she had with the applicant. The boy was unaware until recently he was not the son of the applicant.

The couple had three children, now aged nine, seven and two. The family lived together in England, the Republic of Ireland, Australia and Northern Ireland, before moving to the Republic, close to the father’s family home, in 2007. Both parents had had brushes with the police in England, and it was claimed in the English proceedings that the father was violent. However, Mr Justice MacMenamin said it was not the function of the court to deal with the merits of the case, but only the issues of law, in particular whether the issues of custody and access should be dealt with here or in England. 

The relationship between the couple deteriorated over the Christmas period in 2008 and, on January 26th, 2009, the father was served with an application for an interim barring order. He left the family home. In about April 2009 they were reconciled and they decided to get married. However, the mother expressed concern that he was only marrying her in order to obtain guardianship of the children.I

In July, she went to a women’s refuge, claiming the father was controlling and violent and drank too much. On July 25th she left for England with the children. There the two elder children entered school. One of them started receiving treatment for a congenital eye condition, while the older ones joined the local football club and are involved in other activities. They have also made friends locally and have many cousins living nearby.

In early July 2009, the father asked his solicitor to make an application to the District Court for guardianship. In order to invoke the jurisdiction of the District Court, the mother would have had to be served with the proceedings. However, this was not done “for some unexplained reason” in the days before she left Ireland, or at any stage afterwards.

Referring to the mother’s conduct in removing the children, Mr Justice MacMenamin said that the effect of her action was to deprive the applicant of the opportunity for day-to-day access. “I think this was reprehensible,” he said.

The father took proceedings under the Hague Convention seeking a declaration that the children were wrongfully removed, which came up in the High Court in December. He also sought guardianship and joint custody.

Decision 

Mr Justice MacMenamin said it was necessary to identify the rights of the father in Irish law, and whether any of these rights could be deemed “rights of custody” under the Hague Convention, and to determine the issue of the habitual residence of the children at the time the proceedings were initiated in December.

He said that the 1991 Act bringing the Hague Convention into Irish law had been amended in 2005 to embody the European Council regulation known as Brussels IIR, which deals with the jurisdiction of member states in relation to divorce, legal separation, annulments and parental responsibility.

This meant that where two member states were concerned, references to the Hague Convention are deemed to include references to the council regulation.Counsel for the applicant had argued that the term “right of custody” had a broader meaning in the council regulation than in the Hague Convention, and included the jurisprudence of the European Court of Human Rights, which gave recognition to a “de facto” family. Under this interpretation, a father who had not formally acquired any statutory rights had “rights of custody”.

However, Mr Justice MacMenamin said the jurisprudence of the ECtHR was by no means clear in protecting the relationship between unmarried fathers and their children, and had stated that there could be an objective and reasonable justification for the difference in treatment between married and unmarried fathers. “Even were EU law to provide a vehicle for the applicant to bring Strasbourg ‘rights’ to bear, such rights would not avail him,” he said.

Turning to the rights of the father in Irish law, he said that following the Supreme Court decision, in McD -v- L, the court was precluded from giving recognition to the concept of the de facto family. The father had no constitutionally recognised rights of guardianship, custody or access, but only the right to apply to court.

The manner in which recognition was given in national courts to judgments of the ECtHR had also been explicitly and authoritatively outlined, meaning that its jurisprudence was to be applied insofar as it was compatible with the terms of the Constitution.

The European Court of Justice had little to say about family rights and these were seen as falling within the remit of the national courts. Nor did the Charter of Fundamental Rights carry any radical change to the sources of law in this area.

It had not been shown that any part of national jurisprudence lies outside the consensus or margin of appreciation enjoyed by member states of either the European Convention on Human Rights or the EU.

He said this case was different from GT -v- KAO (also involving unmarried parents in an application under the Hague Convention), in that here, both the High Court and the Supreme Court found the service of District Court proceedings by the applicant father on the respondent mother (seeking guardianship) meant the court had “right of custody”, which had been breached.

Insofar as the High Court had, in that case, recognised the applicant’s role within the family unit as conferring upon him rights of custody, this had been superseded by the findings of the Supreme Court in McD -v- L.
He therefore found that there had been no breach of a “right of custody”, and that the habitual residence of the children was England, given that they had been lawfully removed by their mother and were now clearly settled there. The father would have a full opportunity to make submissions and be represented there in relation to custody of and access to the children.

The full judgment is on www.courts.ie
Dervla Browne SC and Tabitha Wood BL, instructed by George’s Lane Law Centre, for the applicant; Gerard Durcan SC, Nuala Jackson BL and Sarah Fennell BL, instructed by Finglas Law Centre, for the respondent 

Implications of judgment on fathers’ rights may be far-reaching
Mon, Dec 14, 2009 

THE RECENT European Court of Human Rights judgment on the rights of an unmarried father may have far-reaching implications for Ireland, writes Geoffrey Shannon.

The court recently handed down a very important decision on joint custody that may have far reaching implications for the rights of unmarried fathers in Ireland. Joint custody involves a child residing with each parent for a stipulated period.The significance of this ruling, however, derives from the rights it attributes to marriage-like relationships rather than its consideration of joint custody per se.

Under Irish law, unmarried fathers do not have an automatic right to the day-to-day care of their children (known as “custody”) nor do they have an automatic right to a say in the upbringing of their children (known as “guardianship”). Nor do unmarried fathers have a right to joint custody. Rather, they have a statutory right to apply for guardianship, custody or joint custody, which will be determined according to the nature of the relationship between the child and the unmarried father.

Following the recent decision of the European Court of Human Rights in Zaunegger v Germany, the Irish law governing the attribution of guardianship, custody and joint custody should be reviewed to determine its compatibility with the European Convention on Human Rights. In this case the European Court of Human Rights held that there had been a violation of the convention on human rights in the case of an unmarried father who was denied a judicial review of a statutory provision making joint custody dependant on the birth mother’s approval.

Of particular importance in this case was the fact that the relationship between the applicant and his partner had lasted five years until their separation in August 1998. The child – the subject of the joint custody application – lived with the applicant until January 2001 when she moved to his partner’s apartment.

In June 2001, the parties reached an agreement on access. Shortly thereafter, the applicant applied to the Cologne District Court for joint custody as his partner was unwilling to consent to it, although otherwise the applicant and his partner were co-operative and on good terms. In June 2003 the Cologne District Court dismissed his application stating that there was no legal basis in Germany for a joint custody order in the absence of agreement between the parties. This decision was upheld by the Cologne Court of Appeal.

The European Court of Human Rights held that “family life” existed between the applicant and his partner for the purposes of the convention on human rights. It reiterated the notion of family under the convention, stating that the convention makes no distinction between the family life of a marital and non-marital family.

The court held that the mutual enjoyment by a parent and child of each other’s company constitutes a fundamental element of family life, even when the relationship between the parents has broken down.Domestic legislative provisions which hinder such enjoyment therefore amount to an interference with the right to family life protected by the convention unless they can be said to be necessary and proportionate.

The European Court of Human Rights held that by dismissing the applicant’s request for joint custody without examining whether it would be in the child’s best interests, the German courts had treated him differently in considering his joint custody application in comparison with the mother and in comparison with married fathers.

It held that, even though the European Court of Human Rights afford contracting states a wide margin of appreciation in custody cases, the difference in treatment in this case was discriminatory as it had no objective and reasonable justification.

The court held that substantial grounds for justification will be required in instances of a gender bias or bias on the grounds of birth or other status. The justification argument will therefore fail if any differential treatment does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means used and aim sought.

The European Convention on Human Rights came into force in Ireland at the end of 2003. It requires the Irish courts to interpret Irish law in a manner compatible with the convention. One of the rights considered in Zaunegger was the right to “family life”.

This is an issue that was highlighted in a previous case before the European Court of Human Rights, Keegan v Ireland, a case referred to in Zaunegger. In the Keegan case, involving primarily the question of an unmarried father’s right to be consulted in relation to the adoption of his child, the court held that the father’s rights under the convention had been violated.The European Convention on Human Rights was applicable, the court emphasised, despite the fact that the natural parents of the child were never married to each other.

For two years prior to the making of the adoption order, the mother and father had been living in a stable relationship and that, essentially, formed a family for convention purposes.

There is now a need for robust legislation in this area. The European Court of Human Rights summarises the position in Zaunegger in the following terms: “While having regard to the wide margin of appreciation of the authorities, in particular when deciding on custody-related matters, the Court also considers the evolving European context in this sphere and the growing number of unmarried parents.”

The Law Reform Commission recently published a consultation paper on Legal Aspects of Family Relationships, which considers a statutory presumption in favour of granting unmarried fathers an order for guardianship unless the welfare of the child dictated otherwise.

It also makes a number of other recommendations and provides a template for reform of the law in this area to ensure Irish law is in conformity with the European Convention on Human Rights. The onus is now on the Oireachtas to put in place the reforms alluded to in the commission’s consultation paper.

Geoffrey Shannon is a solicitor and author of Child Law (published by Thomson Reuters)

© 2009 The Irish Times

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