The Mr G High Court judgment gave recognition, for the first time, to the rights of unmarried fathers in Ireland under European law, according to a family law expert.
Geoffrey Shannon told a conference on the implication of the case for Irish family law that Mr G's right of custody under European law was recognised despite his lack of status under the Irish Constitution. This should now be provided for in legislation, he said.
Mr Shannon, author of a number of books on family law and chairman of the Adoption Board, said the significant aspect of this case was the part of Mr Justice McKechnie's judgment in which he recognised Mr G's rights under the European Convention on Human Rights (ECHR).
Mr G challenged the removal of his two children from Ireland by their mother without his consent under two international instruments, the Hague Convention on Child Abduction and a European regulation known as Brussels ll bis, which supplemented the terms of the Hague Convention.
Mr Justice McKechnie stressed that this, like all EU law, has to be read in a manner consistent with the ECHR , Mr Shannon said.
Article 8 of the ECHR guarantees the protection of family life. Mr G argued that his relationship with his children and their mother constituted family life within the meaning of this article, and Mr Justice McKechnie agreed, finding the couple and their children "constituted, at all relevant times, a de facto family within the meaning of that article."
"We must now look at the question of the rights of fathers under the European Convention on Human Rights," said Mr Shannon. "Notwithstanding the absence of rights for unmarried fathers at domestic level, we must have regard to the substance of the relationship rather than the form of the relationship."
He said that not all unmarried fathers may be able to avail of these rights, but Mr Justice McKechnie laid down tests that could be applied in invoking them. These were: whether the couple had lived together; the length of the relationship; and the ways in which they had demonstrated their commitment to each other.
He said the Supreme Court judgment, which upheld the High Court ruling, had avoided the Brussels ll issue, concentrating on the technical issue of whether the children had been wrongly removed from the custody of the District Court in March under the Hague Convention. This meant that the McKechnie statements on Brussels ll and the ECHR remained unchallenged. "There is a need now for a framework to reflect our obligations under the European convention within domestic law."
Barrister Patricia Brazil also stressed the importance of this aspect of the McKechnie judgment. His comments "may well add fuel to the fire in the debate on fathers' rights in Ireland, with potential application in the areas of guardianship, custody and/or adoption," she said.
She pointed out that he had said that the phrase "right of custody" in the Brussels ll regulation "must be given a meaning independent of Irish law, seeing as it is part of an autonomous legal order. That order also includes the European Convention on Human Rights."
She told the conference that Mr Justice McKechnie had also said that the institution of marriage "had little to fear" from the recognition of the rights of unmarried fathers who had a relationship with their children. "In fact one might strongly argue that society, as a 'general rule' should encourage non-marital fathers to act responsibly towards their children and of course towards their children's mother," he had said.