Men and guardianship: Bill improves, but still primitive.

By Michael Smith.

The Children and Family Relationships Bill is the most important piece of legislation affecting parents and children 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 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) recommended 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 problem. The LRC’s recommendation that “legislation be enacted to provide for automatic joint parental responsibility (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.

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 parents 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 will acquire automatic guardianship. An unmarried father is not automatically 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 guardianship 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 situation whereby responsibility will be conferred only on unmarried fathers who seek to exercise such responsibility, (through the courts if the mother’s consent is not forthcoming) while mothers and marital fathers will continue automatically to assume such responsibilities on the birth of a child.

The LRC thinking is reflected in that of the Equality Authority which has specifically committed itself to supporting initiatives “…[p]romoting the status of men as carers, in particular the equal sharing of caring rights and responsibilities between women and men and continuing dialogue with men’s organisations on issues of equality for men…”.

In 2010 the Equality Authority recommended that steps be taken to promote equal sharing of parental responsibilities by those in a parenting role in respect of the child, where this is appropriate 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 conferring 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 responsibilities 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 interests of the wellbeing of the mother, for the father (or indeed other guardians) to retain parental responsibility. Some disgracefully argue, for example, 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 guardian. Such situations should include, in particular, where that person has consistently failed to meet his responsibilities 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 deficit 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 Fundamental 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:

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. 

For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services 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 guardianship, 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 misapprehension 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 contrary to elementary principles of human rights, egalitarianism and the best interests of the child to link automatic guardianship to any marital or cohabitation criteria. •