The position of an unmarried father in Ireland is quite precarious. The legislation governing this area is over 30 years old. In short, the legal position of an unmarried father in Ireland is that he has no automatic legal rights in respect of his children, a fact which was confirmed by the recent Supreme Court case of J. McB. v. L. E., which was referred to the European Court of Justice for a preliminary ruling. While an unmarried father has no automatic rights in respect of his children, he can acquire certain rights, including rights of guardianship, full or joint custody and access. Guardianship Guardianship entitles a father to be consulted in relation to matters concerning the child’s health, welfare and education. Married parents are automatically the joint guardians of their children. If a child is born outside of marriage, the child’s mother is the sole guardian. Section 6A of the Guardianship of Infants Act 1964 gives an unmarried father the right to apply to be a guardian but he does not have any automatic right to be a guardian. Contrary to popular belief, the presence of a fathers name on a birth certificate does not bestow any rights on an unmarried father – it simply confirms paternity. The father can become a joint guardian with the consent of the mother if they both sign a Statutory Declaration in the presence of a Peace Commissioner or Commissioner for Oaths. If the parents get married subsequently, the father will automatically become a joint guardian of the child and a Declaration is not necessary. If the mother of the child will not agree to sign a Declaration, the father may make an application to the District Court to be appointed as a joint guardian. The court will make its decision based on the best interests of the child and statistics show that 70% of fathers who apply for joint guardianship are successful. Custody Custody is the right to the physical care and control of a child. Under Irish Law, an unmarried mother is the sole custodian of the child. The father has no custodial rights. It is open to an unmarried father to apply for full or joint custody of his child. The father does not need to be a guardian of a child before he can make this application and the Courts utmost consideration in applications of this kind is the welfare of the child. While joint custody is possible, generally the realities of life mean that it is more practical for a child to reside with one parent while exercising access with the other. Access Access is the right of a child to spend time with their parent, when they do not live with that parent. It should be noted that the right of access is the child’s right to have access to their parent and not vice versa. Access might typically include taking the child for a pre-arranged time on a daily or weekly basis, going on holidays or having overnight stays at weekends. An unmarried father may apply to the District Court for access to his child regardless of whether or not he has been appointed a guardian first. Again, the welfare of the child is the most important factor for the court when dealing with these applications. Agreement Between the Parties In all matters involving family law, it is always preferable if the parties come to their own agreement regarding the custody and access of their children. Putting matters in the hands of the court should be a last resort but sometimes it is necessary. It is important to note that informal arrangements between parents regarding access and custody are not subject to legal enforcement. Such agreements can be given the same standing as a Court Order if they are made ‘rules of Court’ by making an application to the District Court. If a written agreement is in place and signed by both parties, the Judge may make it a rule of court, thus giving it the same standing as a Court Order. Considering the fact that 33% of all births in Ireland are now outside marriage, this is an area that is very much in need of reform. Ireland is lagging behind its European counterparts by failing to address this social reality. Unfortunately, the recent decision of the European Court of Justice mentioned above, delivered on the 5th of October 2010, has merely served to copper-fasten the position in Irish Law that unmarried fathers have no automatic legal rights in respect of their children.
Posted on: Tue, 05 Aug 2014 00:32:44 +0000