‘Sad day’ as EU court rules father has no custody rights

A VERY sad day for unmarried fathers and a very sad day for children is how the organisation representing separated and single fathers described the court ruling confirming an Irish father had no automatic right to custody of his children.

The man, known only as Mr J McB, took his battle through the Irish and British courts but finally lost in the European Court of Justice in Luxembourg.

He argued the mother of his children should not have taken the children from their home in Ireland where they had lived together for eight months. He claimed her action breached his right to a private and family life under the EU Charter of Fundamental Rights.

But the court ruled that since an unmarried mother automatically has custody rights to her children under Irish law, and since the father had not applied to the courts for custody, she could not be accused of having abducted them.

Ray Kelly, founder of the Unmarried and Separated Fathers of Ireland group, said they suffered the worst kind of discrimination since fatherhood granted them no rights in Ireland.

“It is a very sad day for fathers and a very sad day for their children. Nobody is asking what is in the best interest of the child. I am very sorry for this man who this evening goes home to his empty house knowing he and his children will not benefit from their relationship – no kisses, no smiles,” he said.

In July last year the children’s mother, Ms L E, left the family home with their three children, aged 10, 8 and 3 years and moved to a women’s refuge. Two weeks later she took them to her home country, Britain.

In the meantime their father applied to the Irish courts for custody rights. Despite being the children’s biological father, under Irish law he had no automatic custody rights as he was not married to their mother.

The mother and the children left the country before papers could be served on her and the case could not be officially lodged with the court.

The European Court of Justice ruled the mother automatically has custody rights under Irish law and is entitled to move with the children to another country if she wishes.

Mr Justice Nial Fennelly in the Supreme Court, who referred it to the European Court of Justice, said the Irish law and the Constitution accords a special position to the family based on marriage. The blood link between a father and his child was an important element but did not confer any rights on the natural father.