A number of recent court decisions have seen a greater recognition of the rights of unmarried fathers, the conference in Trinity College on the implications of the G case was told.
Dr Oran Doyle BL, a lecturer in law in TCD, said there was a fundamental difference between the approach of the Constitution and that of the European Convention on Human Rights (ECHR). "Article 41 of the Constitution protects the rights of the family. Article 8 of the ECHR protects an individual's right to respect for her private and family life."
However, this has been mitigated by the willingness of the Irish courts to imply into Article 40 of the Constitution protection for certain individual rights to respect for family life, particularly with regard to the rights of natural mothers. These were not extended to natural fathers, who were seen as not automatically having a relationship with their child or children.
"In relation to natural mothers, the best interests of the child are only considered if the mother surrenders her rights; in relation to natural fathers the father only has a right if the best interests of the child require it," Dr Doyle said. But under the ECHR "a bond amounting to family life" is considered to exist between a child and both unmarried parents, particularly if they are living together.
The courts have taken the view that all the Constitution requires is a right (to unmarried fathers) to apply to have one's rights considered. But the incorporation of the ECHR into Irish law since 2003 may mean it will have increasing influence on how the Constitution is interpreted, he said.
While it is inconceivable that Article 41 would be interpreted to give more rights to unmarried fathers, Dr Doyle said more progress may be possible under Article 40, guaranteeing personal rights. Such an approach was indicated by Mr Justice McKechnie's ruling in the Mr G case, where he suggested that a natural father had more than a mere right to apply for recognition. Instead, he suggests that the rights of the unmarried father derive from his relationship with the child, and the role of the court is to recognise rights that already exist.
Other recent judgments also show a shift in judicial attitude, according to Dr Doyle. In the Supreme Court judgments in the "Baby Ann" case, Mr Justice Hardiman and Mr Justice Geoghegan stressed the primacy of the child's natural family.