Reform of the family law system: Guardianship rights for all fathers

In Digging, one of Seamus Heaney’s most memorable poems, he writes about watching his father “stooping in rhythm through potato drills” and concludes: “By God, the old man could handle a spade/Just like his old man.”

His father inspired him to perform a different kind of excavation: “Between my finger and my thumb/The squat pen rests./I’ll dig with it.” As the poet attests, fathers can inspire as well as love and nurture so why is it that the Irish legal system is so cruel to them?

Under Irish law, the importance of motherhood is a given; rarely tested and never contradicted. Yet the significance of fatherhood is often ignored or overlooked, leading to heartache not just for fathers but also for children.

Considering how far we have come in advancing social legislation, it is shameful that in Ireland, unmarried fathers do not have guardianship rights even if their name is on their child’s birth certificate.

The rights of parents to guardianship are set down in Section 6 of the 1964 Guardianship of Infants Act. Guardianship rights entitle a parent to make important decisions regarding the child’s religion, education, medical treatment and where he or she lives.

All mothers, irrespective of whether they are married or unmarried, have automatic guardianship. A father who is married to the mother of his child also has automatic guardianship rights but an unmarried father doesn’t.

The 2015 Children and Family Relationships Act modified matters by allowing a single father to be a guardian if he has lived with the child’s mother for a certain period but, in the event of a disagreement with the mother, he may still have to go to court to assert that right. Considering the ‘mother knows best’ default possession taken by many judges in family law courts, there is no guarantee he will succeed.

The joint Oireachtas committee on justice and equality is sitting this week to consider reform of the family law system. They have listened to representatives from Treoir, the National Federation of Services for Unmarried Parents and their Children, who point out that denying automatic guardianship rights to fathers is out of step with international best practice and with the situation in Northern Ireland where the law was changed in 2002 acknowledging fathers’ rights.

Addressing the committee and calling on the Government to extend guardianship rights to all fathers, Treoir’s CEO Damien Peelo put it succinctly: “We need a family law system that is fit for purpose in 21st century Ireland.”

Allowing same-sex couples to marry required a referendum; all this needs is a little compassion and commonsense. In extending the rights of fathers, the Government would be acknowledging the important role played by them and the profound influence they have on the social, emotional and intellectual development of a child.

Guardianship isn’t about possession; it’s about nurture. As the saying goes: “A father is every son’s first hero and every daughter’s first love.” It is time to stop treating fathers as little more than disposable utilities.

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