The former Minister for Justice and Attorney General, Michael McDowell has reiterated his call for the Government to address the question of fathers rights. Speaking at a Bar Council conference, Mr McDowell said that the rights of unmarried fathers can be fought for in the Irish courts through the European Convention on Human Rights.
He went on to question whether current Irish law on the rights of unmarried fathers, as represented by the 1966 Nicolaou judgment, was good constitutional law any longer. Mr McDowell, who represented the father in the GT v KAO case, also known as the "Mr D" case, suggested that the case showed that there was “a fundamental and stark difference in approach to family rights in the European Convention jurisprudence and in that of the Irish courts” in this area.
In the Mr D case, 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.
Mr McDowell pointed out that, in his High Court ruling, 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. He 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.
He said that this decision, made in 1966, was based on the fundamental premise that the constitutional family was based on matrimony. De facto families not founded on matrimony enjoyed no constitutional protections under this interpretation, he said.
Mr McDowell that even in the 1960s, constitutional expert John M Kelly had exposed the weaknesses in the Supreme Court decision in his Fundamental Rights in the Irish Law and the Constitution, published in 1967.
In considering the GT case, the Supreme Court had not looked at the European aspect of the judgment, but ruled on the more limited 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 not 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."
27/02/07
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