Tuesday, May 04, 2010
Every child should be entitled to know his or her father and mother, but there is a danger that the unmarried father could be totally excluded from the lives of their children due to outdated family law practices.
A third of all children are born outside marriage in this country, and half of the parents of those children do not live together.
People may not like or approve of those statistics but they are a facet of modern Irish society and it is, therefore, an issue that must be faced without further delay. Some 2,448 unmarried fathers applied for guardianship of their children in 2008. This was an increase of 140% over the year 2000.
When the mother agrees, guardianship can be agreed voluntarily, but otherwise the father must apply for guardianship through the courts. The current treatment of unmarried fathers in this country is arguably in breach of the European Convention on Human Rights.
Ireland is alone among common law countries in the way in which it discriminates against unmarried fathers. In law, the unmarried father is regarded as a legal stranger to his child, no matter how lengthy a relationship they may have enjoyed.
This issue came to the fore recently when the High Court rejected a challenge from a man whose former partner had taken their three children to live in Britain. The man did not have custody rights, because he had never applied in the courts for legal guardianship, which would have been unnecessary if he had been married to his partner.
The judge noted that there had been talk about reforming this aspect of the law for some time. The Labour Party has drafted a bill that would accord automatic rights of guardianship to unmarried fathers, but the Law Reform Commission stopped short of making such a recommendation in regard to the current legal terminology of guardianship, custody and access.
Instead the Law Reform Commission recommends that the law should use terms like parental responsibility, day-to-day care, and contact. It also recommends that there should be a statutory presumption that the non-marital father has an automatic right guardianship, unless this would be considered to be against the welfare or best interest of the child.
The issue should not be about the rights of the mother as opposed to the father, but about the rights of both mother and father along with the rights and interest of the child, which should be paramount. These issues are not new, but they have become a kind of social norm, and it is time our politicians and society as a whole addressed them properly.
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