Improved but still fundamentally flawed

16 April 2015

HE Children and Family Rela-

tionships Bill is the most

important piece of legislation

affecting parents and chil-

dren for a generation. There

is much that is good in the bill but this

article focuses on one surprising defect:

the provisions on unmarried fathers and

guardianship.

While the extension of automatic

guardianship under the Bill to fathers

who can demonstrate that they have

cohabited with the mother for one

year (with three of the months after

the birth of the child is an advance of

In these jurisdictions, automatic

guardianship for unmarried fathers can

be challenged by the mother if it is not in

the best interest of the child.

In other words the presumption that

the father should have guardianship

over his children can be rebutted (the

same position as applies to the mother’s

rights).

The proposal in the current Irish bill

seems to be based on the view that the

father derives his guardianship rights

as “family” rights from co-habitation.

But the rights accrue to the child on the

basis that it is better the child should

have fully engaged parents, mother and

father alike – and should not derive from

any interpretation of family.

It is possible that the Children and

Family Relationships Bill when enacted

will be inﬁrm either constitutionally

or under the European Convention on

Human Rights.

Currently where a child is born to par-

ents who are married to each other, the

child’s mother and father automatically

acquire joint guardianship in respect of

the child. By contrast, where a child is

born outside marriage, only the mother

a sort, concerned agencies like Treoir,

which provides advice to unmarried

parents, believe that the Bill does not

go far enough to reﬂect the rights and

responsibilities of unmarried fathers

for their children. Unmarried fathers

should be the automatic guardians of

their children – as married fathers

are. The father’s relationship with the

mother should not be determinant. The

Law Reform Commission (LRC) recom-

mended this in 2010 (and indeed in its

1982 Report on Illegitimacy). It stated

unequivocally: “equality should be the

guiding principle in reforming the law

in this area”.

Equality is a big principle with clear-

cut edges and the Bill simply does not

enshrine it. That is a fundamental prob-

lem. The LRC’s recommendation that

“legislation be enacted to provide for

automatic joint parental responsibil-

ity (guardianship) for both mother

and father of any child” has been

ﬂouted in the Bill.

Unmarried fathers are the automatic

guardians of their children in Northern

Ireland, Britain, Australia and many

European countries.

The Children and

Family Relationships

Bill betrays the equal

rights and duties of

paternal guardians.

By Michael Smith

Improved but still

fundamentally awed

The Law

Reform

Commission

stated

unequivocally:

“equality

should be

the guiding

principle in

reforming the

law in this

area”

“

NEWS Guardianship

April 2015 17

NEWS Guardianship

will acquire automatic guardianship.

An unmarried father is not automati-

cally deemed to be a guardian, though he

may become a guardian either by means

of a statutory declaration made jointly

by both parents, or by court order. This

means that a child born to married

parents automatically enjoys the guard-

ianship of two persons. A child born

outside marriage, on the other hand,

has no automatic right to this second

guardian. The child’s right to a second

guardian is, in such cases, contingent

on the father’s willingness to seek and

accept guardianship, and then on either

the mother’s willingness to accept him

as a joint guardian or, in the alternative,

on the assent of a court.

The Commission’s suggestion of a

strong presumption in favour of the

father, while an incremental step, would

nonetheless maintain the current situ-

ation whereby responsibility will be

conferred only on unmarried fathers

who seek to exercise such responsibil-

ity, (through the courts if the mother’s

consent is not forthcoming) while moth-

ers and marital fathers will continue

automatically to assume such responsi-

bilities on the birth of a child.

The LRC thinking is reﬂected in that

of the Equality Authority which has spe-

ciﬁcally committed itself to supporting

initiatives “…[p]romoting the status of

men as carers, in particular the equal

sharing of caring rights and respon-

sibilities between women and men

and continuing dialogue with men’s

organisations on issues of equality

for men…”.

In 2010 the Equalit y Aut horit y recom-

mended that steps be taken to promote

equal sharing of parental responsi-

bilities by those in a parenting role in

respect of the child, where this is appro-

priate in the particular circumstances.

In this regard, as a matter of principle,

the fact that a child is born inside of or

outside of the context of marriage should

have no bearing on the child’s right to be

cared for and supported by both of his or

her parents.

If guardianship is viewed as a vehicle

primarily for conferring responsibility

in respect of a child, the case for con-

ferring parental responsibility on both

father and mother automatically on the

birth of a non-marital child, has much to

recommend itself:

• It would remove the distinction

between marital and non-marital

fathers, emphasising that parental

responsibility is predicated on the

relationship between the parent and

child and should not depend on the

relationship between the parents of

the child;

• It would emphasise that mothers and

fathers alike each have equal respon-

sibilities towards their child.

Certainly there may be exceptional

cases in which it will not be either in the

child’s best interests, or in the inter-

ests of the wellbeing of the mother,

for the father (or indeed other guard-

ians) to retain parental responsibility.

Some disgracefully argue, for exam-

ple, that rapists should potentially

beneﬁt from paternal rights including

guardianship.

These exceptional situations will

necessitate a mechanism whereby a

person may be removed as a guard-

ian. Such situations should include,

in particular, where that person has

consistently failed to meet his respon-

sibilities towards the relevant child or

where that person has raped the mother

or been convicted of a serious criminal

oﬀence or has committed a serious civil

wrong against the person of the child or

other guardian. This removal must be

subject to periodic review and subject

to appeal.

Exceptional circumstances should

not shape general policy and principles

of the law as it applies to the majority of

cases of childbirth.

The Bill reveals an extraordinary def-

icit in egalitarianism – denigrating the

father and denying him guardianship

unless he can prove certain conditions

have been met – being married, having

been in a relationship with the mother

for a year etc.

The presumption should be reversed.

Unless he is shown delinquent in some

signiﬁcant way the presumption must

be that the best interests of the child

are served by his being guardian and he

should have that status automatically,

subject to rebuttal of the presumption. If

the father’s rights are not seen through

the lens of equality there is a danger that

his duties will not be either.

Legal reform should have been guided

and informed by the United Nations

Convention on the Rights of the Child

(UNCRC) as well as the relevant case

law of the European Court of Human

Rights and the EU Charter of Funda-

mental Rights. In international law,

particular emphasis is placed on the

seminal importance of the best interests

principle.

For example, Article 18 of the UNCRC

provides:

1. States Parties shall use their best

eﬀorts to ensure recognition of the

principle that both parents have

common responsibilities for the

upbringing and development of the

child. Parents or, as the case may be,

legal guardians, have the primary

responsibility for the upbringing

and development of the child. The

best interests of the child will be

their basic concern.

2. For the purpose of guaranteeing

and promoting the rights set forth

in the present Convention, States

Parties shall render appropri-

ate assistance to parents and legal

guardians in the performance of

their child-rearing responsibilities

and shall ensure the development

of institutions, facilities and serv-

ices for the care of children.

Guardianship really matters. The

guardian of a child decides where that

child will live, and go to school, and

what religion, if any, the child will be

raised in. The guardian’s permission is

required for medical treatment of the

child, including vaccinations, and to

secure a passport for the child.

Beyond guardianship the Bill will

ﬁnally ensure the voice of the child will

be heard and his or her best interests

will be taken into account in decisions

aﬀecting a child.

Treoir has welcomed the provisions

that grandparents, step-parents, foster

parents and others who have acted in

loco parentis to a child can apply for

guardianship. And recent amendments

made to the Bill will mean that a Birth

Registrar will be empowered to witness

a statutory declaration for joint guardi-

anship, signed by the mother and father,

appointing the father as a guardian. This

can be done when the birth of the child

is being registered (or re-registered) or

within 14 days of the registration. This

is a welcome advance. Many unmarried

fathers are currently under the mis-

apprehension that jointly signing the

birth register gives an automatic right

to guardianship of a child.

While the Bill constitutes an advance

in several important areas, it is con-

trary to elementary principles of human

rights, egalitarianism and the best

interests of the child to link automatic

guardianship to any marital or cohabi-

tation criteria. •

Unless he

is shown

delinquent

in some

signiﬁcant

way the

presumption

must be that

the best

interests of

the child are

served by the

father being

guardian

“