THE RIGHTS of unmarried fathers can be fought for in the Irish courts through the European Convention on Human Rights, according to Michael McDowell SC.
He questioned whether existing Irish law on the rights of unmarried fathers, as represented by the 1966 Nicolaou judgment, was good constitutional law any longer.
The former minister for justice and attorney general was speaking at a Bar Council conference on the convention recently, and he spoke of the GT v KAO case, also known as the "Mr D" case, where he represented the father.
There the unmarried father of twin boys took legal action in Ireland and England to secure the children's return to Ireland from Britain, where the mother had taken them without his permission.
The father won his case in the High Court and the Supreme Court and the children were returned voluntarily.
In the High Court, Mr Justice Liam McKechnie examined the issue from the standpoint of the European Convention on Human Rights and European law as well as Irish law, Mr McDowell said.
The judge considered whether the "wrongful removal or retention" of a child under the Hague Convention could be considered independently of Irish law and decided that it was part of an "autonomous order", that is, EU law.
This meant that the EU law recognising the convention gave a pre-eminent role to the convention, which recognised the rights of de facto families.
"The court went on to hold that the removal of the children, for the purposes of the European regulation, was wrongful even though, as a matter of domestic law, the mother as sole guardian of the children was free to bring them outside the jurisdiction without the consent of the child's father.
"There is a fundamental and stark difference in approach to family rights in the European Convention jurisprudence and in that of the Irish courts following from the Nicolaou decision," Mr McDowell added.
He said that this decision, made in 1966, was based on the fundamental premise that the constitutional family was based on matrimony and that de facto families not founded on matrimony enjoyed no constitutional protections.
He said that even then, the late John M Kelly exposed the weaknesses in the Supreme Court decision in his Fundamental Rights in the Irish Law and the Constitution, published in 1967.
When the Supreme Court considered the GT case, it did not look at the European aspect of the judgment, but ruled on the much narrower ground of the jurisdiction of the Irish District Court over the case, he said.
The broader issue which might have been decided by the Supreme Court, had it not decided on this narrow issue, was the approach taken by Mr Justice McKechnie to the rights of fathers under the human rights convention and the more fundamental question as to whether the Nicolaou case represented good constitutional law any longer, Mr McDowell said.
"In a society where one-third of children are being brought up in family units now based on matrimony," he added, "the view that a natural father who is caring for his children in such circumstances has absolutely no constitutional rights or protection in respect of his relationship with his children, and must accept the few crumbs that fall from the table of statutory protection, is increasingly untenable."