Posted on
02 July 2010, under
Money & Legal; More Money & Legal articles...
Don't lose your grip!
A recent decision of the High Court delivered on 28th April last received quite a bit of attention in the media at the time and has been described as a wake up call for unmarried fathers of young children. It certainly is. The outcome of the case demonstrates that unless unmarried fathers take the simple step necessary to give legal recognition to their relationship with their children, they could risk being denied contact with their children in circumstances where it is too late to do anything about it.
Media attention on this case has focused on the fact that the judgment has clearly stated that there is no recognition of a de facto family in Irish law which has led some media commentators to state that unmarried fathers do not have any rights. Well that is not entirely accurate. Married fathers have rights and one very basic and easily protected one in particular; but in this case the father hadn’t exercised it.
The parties to this case met eleven years ago in London, he was Irish and she was English. They were both in their early twenties. They went on to have three children together, now aged 9, 7 and 2. All of these children were born while the couple was in a continuous relationship. Since 1999 they lived in England, Ireland, Australia and Northern Ireland and eventually came to live in a rural location in Ireland near the father’s home place where the children went to school, formed the usual ties with their father’s family, and were friendly with their cousins who lived close by.
The relationship between the mother and father appears to have been unstable. There were various allegations and counter allegations made by each party in the case in relation to each other’s conduct. However, what is clear is that there was a continuous relationship throughout the course of the lives of all of the children. Despite their ups and downs, in the spring of 2009 they had decided to get married in the autumn of that year. However, during the summer things seemed to deteriorate very rapidly and one day in late July of that year the mother flew with the children to England without having informed the father in advance.
The High Court judge who heard the case and delivered this judgment analyzed the facts in detail. He found that while the mother acknowledged that the father had been a good father her intention in taking the children out of the country away from their home was to deprive their father of day to day contact with them. The judge said that he thought this was reprehensible. Now if to the lay man lawyers seem to speak in code, High Court judges are the supreme code masters. The language they use is generally very measured. So let me decipher, when a High Court judge describes your conduct as reprehensible, that’s bad. You should be worried.
So obviously having found the mother’s actions worthy of condemnation, the High Court judge rode in on his white charger on behalf of the father in this case and ordered the children’s return to Ireland. Well not quite. As with so many things when you scratch beneath the surface of legal relationships, it wasn’t quite that straightforward.
To put it simply, the judge found that while the mother’s actions in taking the children abroad without the father’s knowledge could be strongly criticized, as the father had not had himself appointed a guardian of the children beforehand she had not broken the law. Furthermore, by the time the case came to be heard the children had settled into a home with the mother’s family in England and had become resident there. Therefore, the father was left having to pursue any rights of access to his children in the English courts.
It is this seemingly harsh outcome from the father’s perspective that has led commentators to say that unmarried fathers have no rights or that their rights have not been adequately safeguarded and vindicated by the Irish legal system. Well, whether the system requires change is outside the scope of this article, but it is simply not true to claim that unmarried fathers don’t have rights. My focus here is to show that those rights can be very easily and simply safeguarded. If that had been done by the father in this case in advance, his relationship with his children in the eyes of the law would have been enforceable in the courts in Ireland.
The judge found in this case that the father had instructed a solicitor earlier in July to make an application to the local District Court appointing him a guardian of the children. But for some reason that guardianship application was never followed through and served on the mother before she left the country with the children. Why not is not clear but in any case the judge makes it very clear that had that District Court application been pursued, the Irish courts’ role in the matter would have been entirely different.
It is a basic right, and indeed, responsibility of any father who cares about his relationship with his child that he be appointed the child’s guardian. Married fathers are automatically guardians of their children.
One might be forgiven for coming to the view that perhaps Ireland is a little old fashioned in making a distinction between married and unmarried families and that if cases like the one referred to above were heard before a European court a far broader view of the family might apply. Not necessarily so. The judge in this case referred in particular to a French case which was ultimately decided before the European Court of Human Rights. The facts in that case were very similar to the Irish one referred to here and the French Civil Code provided for a statutory procedure whereby the unmarried father could confirm parental responsibility. In that case the European Court of Human Rights found that as the father had not taken the opportunity that was available to him to formally share parental responsibility he was not afterwards able to argue that his rights had been infringed when his children were taken out of the jurisdiction by their mother.
Unmarried fathers are not automatically guardians and there are good reasons why this is the case. There are cases where fathers chose not to form any relationship with their children and do not wish to support them. In cases such as these to give automatic rights in relation to day to day care and welfare issues for a child to a person who has shown no interest in or responsibility for that child would not be in the interests of the child.
There are of course very many cases where unmarried fathers have a very strong ongoing relationship with their children which they take very seriously and are no different in this respect to married fathers. The children’s parents may not be able to get married or may have decided that they do not wish to get married for any number of perfectly valid reasons. However, where parents of young children find that they cannot or do not wish to get married, the couple and the father in particular should take care to legally safeguard the father’s relationship with the children in the absence of marriage.
This can be done very simply and, once both parties are in agreement, there is no necessity for a court application. Both parents can simply complete a declaration that the father is the guardian of the children. This declaration needs to be in a statutory form and should be completed by the parties via a solicitor. There is no central system of registration of these declarations and therefore if it subsequently requires to be produced or relied upon it should be retained and verified by the solicitor on behalf of the parties.
And it is not simply fathers who should be concerned about ensuring that they are appointed guardians of their children. For a mother in a stable and secure relationship with the father of her children to whom she is not married, she should also be concerned to see that he is appointed a guardian as, if anything were to happen to her, in the absence of a declaration by the mother it may require an application to court to have a legally recognised guardian appointed on behalf of the children.
The appointment of a father as guardian is a simple and straightforward procedure that any unmarried father who takes his relationship with his children seriously should have done. The facts of this case illustrate that if a father does not take care to give legal recognition to this most fundamental of relationships, he risks exposing himself to a situation where he can be deprived of the relationship completely and find himself with no legal remedy in this country.
These articles are not intended to be legal academic articles but rather to be informative about legal issues for a general readership. The judgment delivered by the judge in this case is an extremely clear and comprehensive account of the law as it applies to the facts in this case, ranging from the Irish Constitution to the European Convention on Human Rights. The case was argued over 7 days in the High Court and involved the top senior counsel in the country in this area. For anyone who is interested in probing into the deeper legal issues unearthed by the case, I strongly recommend you read it: http://www.mccarthy.ie/resources/articles/jmcb-v-le/
Flor McCarthy is a qualified solicitor, a registered tax practitioner and a registered trust and estate practitioner. He is the managing partner of McCarthy & Co., Solicitors in Clonakilty, West Cork. Flor started out his career in practice with a Dublin city law firm in 1995. He is from Clonakilty and moved back to West Cork in 2000. He is a father of five, but when it comes to giving advice to dads, he tends to stick to the legal stuff! http://www.mccarthy.ie/people/flor-mccarthy/
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