The High Court has rejected a challenge by a man to the legality of what the court described as the “reprehensible” removal by his former partner, with whom he had a ten year relationship, of their three children to England to live.
The English courts will now determine an application by the father for guardianship, custody of and access to his three children aged two, seven and nine years.
The judgment of Mr Justice John MacMenamin highlights the lack of laws here dealing with the rights of unmarried fathers and some effects of the absence of recognition in Irish law of a “de facto family” not based on marriage.
The mother’s removal of the children in July last year just weeks after terminating her relationship with the father did not breach his rights under Irish law and was not wrongful within the terms of the Hague Convention on Child Abduction and/or the relevant EC regulation (the Brussels Regulation), the judge ruled today.
The law protects those who hold custody rights and, because the father had not exercised his right to apply to the District Court here for guardianship, custody or relocation of the children during his relationship with the mother, he had no right under Irish law to custody or access, the judge said. An unmarried father had no automatic rights of guardianship but was only entitled to apply to court for guardianship, custody and access.
The judge said he was bound to follow the decision of the Supreme Court that there is no institution in Ireland of a “de facto family”. This meant this unmarried father only had the right (which he had not exercised) to apply to the District Court to have his right to guardianship, custody and access determined and had no other right.
As both the Hague Convention and Brussels Regulation clearly stated the removal or retention of a child is wrongful only if it breaches rights of custody which had been exercised or would have been exercised were the children not removed, the man also had no rights of custody within Article 5 of the Hague Convention as complemented by the Brussels regulation.
The judge further rejected arguments the children’s removal breached the man’s family rights under Article 8 of the European Convention on Human Rights or his alleged “inchoate” (undeveloped or incipient) rights.
While it could now be said the European Court of Human Rights recognises family life between parents and children without regard to their marital status, the European jurisprudence recognised a “wide margin of appreciation” on issues such as custody and indicated decisions were generally to be based on a child’s best interests. The father’s failure to seek custody here also meant European cases and UK cases referred to did not assist his case.
Had the man exercised his right to apply for custody, the outcome of his case could have been “radically different”, the judge remarked.
While the man had alleged his former partner deliberately evaded service of custody proceedings initiated by him some ten days before the woman and children went to England, the judge said there was no independent evidence to support that claim and it was clear the woman stayed in a women’s refuge for a few weeks before leaving for England.
Service of the District Court proceedings would have given the court “custody” of the children with the result their removal from Ireland would have been unlawful, he noted.
The children’s mother had accepted, whatever about her relationship with the man, he had been a good father. She said her intention in removing the children from daily contact with him was because she feared his conduct would affect their wellbeing.
Whatever about her intention, the effect of her action in removing the children to England was to deprive the father of the opportunity for day to day access, the judge said. That was “reprehensible”.
Mr Justice MacMenamin said the issues in this “difficult and troubling” case were “by no means insignificant”, not confined to this case, required determination of policy and touched on how rights are defined, identified or applied within the framework of the Constitution.
It was a matter for legislators and for committees supervising the operation of the Hague Convention and the Brussels Regulation “to ensure the law evolves in such a manner as to keep pace with social change”, he said. There are some issues of such complexity or consequence that can only be resolved by legislators and not judges.”
