Little solace in G case decision

Mon, Sep 17, 2007, 01:00

Much media reporting of the G ruling last week was misinformed and may have misled single fathers into believing it extends them improved "rights", writes John Waters.

 My initial response, on hearing reports, was that it was too grounded in the specifics of the G case to offer much solace to single fathers generally. On reading the judgment, I am more downbeat. In general, in the array of precedental material cited, the judgment makes dismal reading for most single fathers, who, on the basis of their specific circumstances, can anticipate a far less favourable outcome if their children are taken from them.

It is widely understood, I hope, that this case had no implications for the custody of the twin boys at the centre of the dispute. At issue only was whether their removal from the jurisdiction by the mother was unlawful. An English court will now decide whether the twins should be sent back here for a hearing about custody and access. It is conceivable that the final outcome will be that the boys return to England.

Mr Justice McKechnie found that the boys had been unlawfully removed. He made this finding under two headings, rejecting all others. He did not find, for example, that the father had any inchoate rights by virtue of being the father. The two headings under which he did find the removal unlawful were (1) habitual residence and (2) family rights.

Under the Hague convention, which G invoked to seek the return of his children, it is stipulated that proceedings in respect of access and custody should take place in the country of habitual residence of the children. In the case of a married family, this usually comes down to the time spent living in one place. In the case of an unmarried "family" it is more complicated, and became still more so in the case of Mr G, who, at the time of the removal, had not applied to a court for guardianship, the minimum threshold of rights for a single father. A majority of Irish single fathers have not sought such rights, largely because to do so involves entering into a legal procedure which can be interpreted by the mother as hostility.

On the face of it, then, G had no legal rights. By a series of interesting semantic manoeuvres, however, the judge extended him the benefit of minimal rights for the purpose of having his children returned home.

The mother took the boys to England in January 2007, up to which point, it was not disputed, their habitual residence was here.

Hitherto, it was assumed that, in the absence of paternal guardianship, the mother could decide the issue of habitual residence alone. Wherever she lived with the children was where they "habitually resided". This has not changed.

The judge decided that, because the mother did not immediately state that she would remain in England, a window was opened up which enabled the father's belated application for guardianship to carry weight. That application first came before a court on March 9th, with judgment being reserved. Judge McKechnie found that, at this point, the mother had not made a decision to stay in England. On this basis, therefore, her continued refusal to return the children was unlawful - not, interestingly, because of any right of the father, but because an Irish court had now, in legal terminology, "retained seisin" of the case.

One obvious implication is that, if the mother had from the outset made clear her decision to stay away, and perhaps made an application to an English court for residence rights, this option would have been closed off. (The judge stressed that, in his view, an application for guardianship by the father should have succeeded on the facts. The district court had kicked for touch, however.) Much has been made of the acknowledgement in this ruling of the "family rights" of the father under Article 8 of the UN Convention on Human Rights. But this had already been established in the case of Keegan v Ireland. What it means is that, if someone (not necessarily a father) can show that he/she has conducted a sustained relationship with mother and children, he/she is entitled to have such family rights upheld.

Unfortunately, as G had been the primary carer of his children since birth, this raises the bar very high indeed, and arguably provides a context where, in future, single mothers may be even less inclined to facilitate fathers' relationships with children.

Here, then, is the ultimate irony of the G judgment. Although its effect in the instant case is to find against the mother, its more general consequence, under the headings of "habitual residence" and "family rights", is to bolster the capacity of mothers to decide. In the absence of paternal guardianship, a mother can decide, unilaterally, where "her" children will live, and protect herself by making this decision abundantly clear. She can also decide which, if any, man or woman should be entitled to claim "family rights" in respect of a relationship with her and "her" children. Fatherhood scarcely comes into it.