Call for law to ensure rights of single dads

Groups supporting unmarried parents have called for urgent reform of the law on the guardianship rights of single fathers.

The calls follow the tragic case of a catastrophically brain-damaged baby whose mother died shortly after giving birth and whose father had to seek court intervention to allow him give consent for the withdrawal of his child’s life support.

Eamonn Quinn of the Unmarried and Separated Parents of Ireland said law reform to grant automatic guardianship rights to unmarried fathers from their baby’s birth is long overdue.

“If this case had happened ‘up the road’ in Belfast, the father would have automatically been the person making the decisions about his baby without having a court case added to his ordeal.”

Treoir, the National Federation of Services for Unmarried Parents and their Children, noted Justice Minister Alan Shatter’s statement last November that he intended legislating to allow automatic guardianship for cohabiting couples but said this could take some time.

Assistant chief executive Margot Doherty said: “Change is coming, although we have yet to see any draft legislation and it won’t suit everyone as parents will have to prove they have been living together and it won’t change the situation for parents living apart. There is an argument for automatic rights for all fathers on the birth of a baby but there are issues around domestic violence, incest and rape. It’s a difficult issue to make one simple rule for.”

Eamonn Quinn said: “We would rather you automatically grant guardianship and then take it away if necessary for the few fathers who don’t deserve it, rather than punish all fathers at the outset.”

The Department of Justice said the heads of the Children and Family Relationships Bill which contain the proposed changes to guardianship are expected to be published “shortly”.

They will then be referred to an Oireachtas committee “as part of a consultative procedure”. No timeframe for enactment of actual changes was specified.

A third of babies born in Ireland are born to unmarried parents and Margot Doherty said there is a huge lack of awareness of the legal implications: “A lot of guys don’t know they don’t have guardianship rights. They think, ‘my name’s on the birth cert so I have my rights’.”

Fathers can become guardians by signing a declaration of joint guardianship form with the mother witnessed by a peace commissioner but Ms Doherty said it was not known how many took up this option.

“We have been lobbying for a long time for a central register of joint declarations. It would keep the documents safe for a start but it would also provide information about how many fathers have no legal guardianship. We think it should be handled by the births registrars. You have to go to your local registration office to register a birth and at that point the registrar should raise the issue with unmarried couples, and have the declaration form for them to complete if they want to; witness its signing there and then and log it centrally.”

Questions and Answers

Why is guardianship for unmarried fathers in the news?

In a tragic case this week, a baby delivered to a woman in cardiac arrest and who subsequently died, was left severely brain-damaged with little chance of survival but his father could not legally consent to his life-support being withdrawn as the couple were unmarried.

Why would being married make a difference?

Only married fathers have automatic guardianship of their children. In unmarried couples, the mother is the sole legal guardian unless and until the father actively seeks guardianship.

How does he do that?

One of two ways. If the mother is happy to share guardianship, he can get a form called the ‘Statutory Declaration of Father and Mother in Relation to Joint Guardianship of Child/Children’ which is available online or from court offices, and fill it in with his child’s mother in front of a peace commissioner. If the mother objects, the father can apply to his local district court to be made a joint guardian. The mother’s views will be considered but will not dictate the court’s decision.

What happens if he doesn’t seek guardianship?

If the couple separates, he will have no automatic rights to involvement in his child’s upbringing and can’t stop the mother taking the child out of the country. All rights would have to be fought for in court. Even in a stable relationship, lack of guardianship can cause problems if the father alone accompanies the child to hospital as he won’t be able to give treatment consent.

Is this a common scenario?

Around 26,000 children are born in Ireland every year to unmarried parents — 33% of all children born. We don’t know how many of the fathers have a declaration of joint guardianship because the details are not recorded by any agency.

What’s being done about it?

Not enough say campaigners. Justice Minister Alan Shatter has promised legislation to grant automatic guardianship to cohabiting fathers but there is no timeline specified.

In the case in the news, the couple had no chance to declare joint guardianship. Is there anything that might have prevented the need for the hospital to go to court to have the decision on the child’s treatment approved?

If the mother had made a will making the father the guardian of any future child in the event of anything happening to her, that might have made a difference but few couples do so in advance of birth.

Couldn’t the hospital have taken the humane approach and gone along with the father’s wishes?

It did take the father’s wishes into account, and by going to court it saved the father having to apply for guardianship so he could personally give consent. A hospital could also take a decision to withdraw life-support purely on medical grounds but this was such a rare case it was not unreasonable the hospital would seek legal certainty.

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