The Unmarried Father- An Uncertain Status

The issue of the rights which natural or unmarried fathers enjoy in relation to their children has once again come under the spotlight following the recent Supreme Court decision of J McB v LE.

This case came before the Supreme Court on foot of an appeal by the father against the High Court's rejection of his challenge to his former partner's removal of their three children to England to reside permanently following the break down of their relationship. Within a number of weeks of ending the relationship the mother moved to England with the children who are all under ten years of age. The Supreme Court held that while it agreed with the High Court that the removal was not unlawful because the man had not applied for custody rights here, it would refer a question to the European Court of Justice in relation to the rights of custody afforded to unmarried fathers under the Brussels Regulation.

During the course of his appeal to the Supreme Court the father had argued that European legislation specifically the Hague Convention protected the rights of custody which include the rights of an unmarried father who lives with and cares for his children. The European Court of Justice is expected to revert with a decision within three months. Essentially the fundamental decision to be made by the European Court of Justice is whether a natural father must have a court order already in place regarding to the custody of the children to render the removal of the children from the country unlawful.

Interestingly the Supreme Court in giving its judgment were of the opinion that according to Irish law if the natural father has no custody order in place either as a result of being denied custody or not applying for it at all then he has no automatic right of custody in the event of the children been taken out of the country. This rationale is based on current Irish legislation which does not automatically grant a right of guardianship to the unmarried father. He must apply to the District Court to be appointed a guardian of the child and for any other ancillary orders relating to custody and access. This is in contrast to the married father who is automatically appointed a joint guardian of his child.

European legislation certainly affords the unmarried father more rights in relation to their children then comparable Irish legislation. The main reason for this is that any applicable European legislation must be interpreted in accordance with the Irish Constitution which continues to protect the special position of the married family.

In recent times we have seen the emergence of a number of campaign groups focused on promoting the rights of unmarried fathers who are seeking changes to existing Irish legislation and the Irish Constitution in order to reflect the modern day Irish family. No doubt the impending decision of the European Court of Justice will be awaited eagerly by such interest groups.

If you wish to obtain further information in relation to any point raised above, then please contact Joe or Daragh at Hassett Considine Solicitors, 9 Carmody Street Business Park, Ennis, Co. Clare (065-6865480) or 19 Kilrush Town Centre, Kilrush, Co. Clare (065-9051588).

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