Outdated law threatens to exclude unmarried fathers from children’s lives

UNMARRIED fathers are in danger of being excluded from their children’s lives due to outdated family law practices which are “unsustainable” as they do not reflect modern Irish society.

Under current laws, branded unsustainable by unmarried parents’ group Treoir, only married fathers have automatic guardianship rights to their children. But with 33% of children now born outside of marriage – half of whom are born to parents who do not live together – there are growing concerns that the interests of both parents are not protected.

In 2008, 2,448 unmarried fathers applied for guardianship, a 140% increase from 2000, but according to Candy Murphy, One Family policy and research manager, there are no true figures for how many men are guardians of their children because no formal register exists.

“When the mother consents, guardianship can be agreed voluntarily, but when she does not, men must apply through the courts. This can makes things very difficult for fathers, and often they do not know they are not automatically their child’s guardian.”

Family Law expert Geoffrey Shannon maintains the treatment of unmarried fathers in Ireland could be in breach of the European Convention on Human Rights. He argues Irish law, alone among common-law countries in retaining a blanket discrimination in relation to unmarried fathers, is not in line with the convention. He said this is because the unmarried father is regarded as a legal stranger to the child, no matter how long the relationship.

The issue came to the fore last week when the High Court rejected a challenge from a man claiming his former partner had illegally taken their three children to England. In this instance, the father did not have custody rights as he had never applied to a court for guardianship.

The judge said he was following the decision of the Supreme Court that there was no institution in Ireland of a “de facto family”.

Labour’s Kathleen Lynch says the principles set out by Justice MacMenamin make it essential the law is updated. Ms Lynch maintains fathers should have an automatic right to guardianship, as provided in a Labour Party Bill on the issue.