Custody case could boost rights of fathers

A CASE taken by an unmarried father and due for hearing in the High Court soon could have huge political and legal ramifications for the rights of unmarried fathers in this country.

Legal experts have said the case which was referred back to the Irish courts by an English judge, could resolve the dichotomy existing between the rights of the child under international law and the lack of rights for unmarried fathers under Irish law.

The case, in which unmarried father is seeking the return of his children to Ireland so he can apply for custody, could strengthen the rights of the family outside marriage, if the High Court recognises that domestic law is in breach of the European Convention of Human Rights which was adopted into Irish law in 2003.

If the High Court finds a breach of international law in this case, politicians would be obliged to legislate to align unmarried fathers’ rights with those set down internationally. There has been little political appetite to address this issue.

Legal sources also said the case could end the right of unmarried mothers to take their children out of the country without the child’s father’s consent if the father has played a significant role in the child’s life.

Mr G went to the High Court in England earlier this year to seek the return of his two-year-old twin sons after their mother took the children to England in January without his knowledge or consent. Mr G was the children’s primary carer since they were born. His children are still in England and their British mother has said Britain is now their habitual residence and that she was fully entitled to take the children without informing their father. The mother argued that, under Irish law, she was the children’s sole guardian as she was not married to their father. In this country, a father is only conferred with automatic guardianship rights if he is married to the mother.

In the case, it is understood that written work on Irish law by Family Law expert Geoffrey Shannon was open to the court. This was influential in the judge’s decision to refer the case back to Irish courts.

The Irish Examiner has learnt that it was argued on behalf of Mr G that under the European Convention of Human Rights, international law looks at the substance of the child-father relationship and not, as in Ireland, the legal nature of the parents’ relationship. Irish law doesn’t recognise the rights of the unmarried, but rights deriving from marriage under Article 41 of the Constitution.

Mr G sought to argue that, since the European Convention on Human Rights was adopted as Irish law, the convention should be taken into account in all custody decisions.

Justice Mary Hogg relying on the written work provided by the family law expert said it was not appropriate for her to make a ruling on returning the children to England as it was a matter for the Irish courts as it was of constitutional importance in Ireland. It’s understood the case could be heard in the High Court in the next 10 days.