Oh father, where art thou? How unmarried fathers can get a raw deal due to outdated laws

It's time to take another look at the rights of unmarried fathers, writes Dr Brian Tobin
Oh father, where art thou? How unmarried fathers can get a raw deal due to outdated laws

The means by which an unmarried father can obtain guardianship without going through the time and expense of a court application fail to meet the needs of many such people in modern Ireland. Picture: iStock

Married parents are both automatically guardians of their child as soon as he or she is born, as is the mother of a child born out of wedlock. 

However, Irish law does not grant the same automatic privilege to the unmarried father. 

Recently commenced legislative provisions concerning the guardianship of children born through donor-assisted human reproduction (DAHR) serve to accentuate the unfairness of the State’s treatment of unmarried fathers.

Parts 2 and 3 of the Children and Family Relationships Act (CFRA) were commenced in May, and they grant automatic guardianship rights to non-biological second parents of children born via donor-assisted human reproduction (DAHR) because of their relationship status with the child’s mother (marriage or civil partnership). 

In contrast, the same piece of legislation discriminates against the unmarried father by denying him automatic guardianship at birth because, no matter how great his caring intentions towards his biological child may be, he lacks a formalised relationship status with the mother.

The unmarried father can only obtain guardianship rights after the birth of the child, and even then he can only do so if he is cohabiting with or on good terms with the child’s mother – otherwise he must apply to the court to be appointed a guardian of his child.

The means by which he can obtain guardianship without going through the time and expense of a court application fail to meet the needs of many unmarried fathers in modern Ireland.

The CFRA provides for a form of ‘automatic’ guardianship for a man who demonstrates his commitment to the mother of his child, because it amends earlier legislation to provide for ‘automatic’ guardianship in the case of an unmarried father who has cohabited with the child’s mother for 12 months, including a period of at least three months after the child’s birth.

However, it is not really ‘automatic’ guardianship when the privilege is only acquired at least three months after the birth of the child, rather than immediately upon birth, and this could have significant consequences where cohabiting parents are in disagreement about decisions that need to be made in relation to the child’s welfare before the father acquires guardianship - only a guardian can make decisions about the most important aspects of a child’s upbringing. 

Further, given current rental and property prices in Ireland, many committed unmarried couples are unable to afford to live together with their child and, consequently, the father is often unable to acquire guardianship by virtue of the provisions contained in the CFRA.

Since 1997, where an unmarried father is not cohabiting with the child’s mother but the parties are on good terms they can agree to make a statutory declaration conferring the status of guardian on the father. 

However, a significant drawback is that many unmarried fathers are not aware that they can make a statutory declaration, and simply do not use this mechanism to acquire guardianship. 

The language of ‘statutory declaration’ is also intimidating to many laypersons and thus a more straightforward means by which those unmarried fathers who have an amicable, non-cohabiting relationship with the child’s mother can be appointed guardians should be embraced by the Oireachtas as it would be in the best interests of both the child and its biological father.

In 2015, the then-Minister for Justice and Equality, Frances Fitzgerald, stressed that the guardianship provisions in the CFRA "reflect existing constitutional protection for marital fathers and are the consequence of legal advice". 

The Minister appeared to be suggesting that, in relation to guardianship, the legal position of married and unmarried fathers could not be equalised by legislation granting automatic guardianship rights to unmarried fathers on the birth of the child because of a perceived need to respect the paradigm married family that is recognised under Article 41 of the Constitution. 

This reasoning does not hold up well under scrutiny because where a child is born through DAHR, a non-marital civil partner of the child’s mother is accorded automatic guardianship rights on the birth of the child. 

Surely the CFRA, by equating the position of a civil partner with a spouse as regards guardianship, already impinges on the constitutional protection for married families? 

Further, from a child-centric perspective, the Children’s Amendment, Article 42A of the Constitution, would surely serve to temper any constitutional protection afforded to ‘marital fathers’, and instead favour largely equating the position of all fathers á la guardianship?

A measured way for the state to balance the constitutional position of marital fathers under Article 41 and the constitutional right to ‘family life’ of the non-marital child under Article 42A would be to preserve the automatic guardianship rights that arise for married fathers on the birth of the child while facilitating the acquisition of such rights for unmarried fathers as quickly and easily as possible after the child’s birth, irrespective of cohabitation with the mother. 

This could be achieved by the introduction via legislation of automatic guardianship rights for all unmarried fathers in those situations where the mother simply consents to registering him as the father on the child’s birth certificate, akin to the law in countries such as England and Wales, and New Zealand.

This reform would remove the need for the little-used statutory declaration or any cohabitation, but the need for the mother’s consent would remain in order to prevent fathers who may have been violent or abusive towards the mother during pregnancy and who may be a danger to the child from automatically acquiring guardianship rights. 

This balanced, pragmatic, child-centric reform would respect the primacy of the married family under Article 41 while affirming that the State is truly committed to equality in the field of parental rights and vindicating the familial rights of the non-marital child ‘as far as practicable’, as required by Article 42A.

Nonetheless, in 2017, the then-Minister for Justice and Equality, Charles Flanagan, stated in the Dáil that he had "no plans to provide for automatic guardianship for unmarried fathers".

One hopes that the current Minister for Justice, Helen McEntee, and the Minister for Children, Disability, Equality and Integration, Dr Roderic O’Gorman (this author’s classmate from his days as an undergraduate law student at Trinity College Dublin) might consider the recommendation made here and move to improve the legal situation of the unmarried father.

- Dr Brian Tobin is a Lecturer in Law at National University of Ireland, Galway.

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