O’B (a minor) -v- MJELR Ors
High Court
Judgment was given on October 6th, 2009, by Mr Justice O’Neill
Judgment
The absence of a public register of guardianship agreements between the unmarried parents of their children did not violate the constitutional rights of such children.
The introduction of such a register, which might be a desirable social reform, was a matter for the executive and the Oireachtas.
Background
The case was taken by the father of a girl born on September 12th, 2006. Her unmarried parents executed a joint statutory declaration on October 25th stating that they would be her joint guardians.
The case put by the father was that it would be in the best interests of the child if the guardianship agreement were registered on a public register recording the existence of such agreements.
The failure of the State to maintain such a register breached the girl’s legal and constitutional rights, he said.
He wrote to the Minister for Justice in November 2007 and received an acknowledgement.
When nothing further happened he instituted these proceedings.
His counsel, Inge Clissman SC, said that the absence of a register of guardianship agreements meant that the child was at risk of losing her rights associated with having her father as her guardian in the event that the agreement was lost or destroyed.
She contrasted this with the position of a marital child, who could look to the register of marriages for proof of guardianship.
This put them in an unequal position, she said.
She referred to the recommendation in the Report of the Family Law Reporting Project Committee to the Board of the Courts Service, which said that a central register of such agreements should be established.
She said that proof of the guardianship agreement depended solely on the survival of the physical legal document. While secondary evidence could be adduced for its existence, this might not always be possible, for example in emergency situations such as an emergency hospitalisation.
She said that it would not be appropriate for the father to apply to the District Court for proof, as applications to the court for guardianship normally arose in the context of a dispute and were at the discretion of the court, while a guardianship agreement came into existence immediately and could not be varied.
The lack of such a register also violated her client’s rights under the European Convention on Human Rights, she said.
Gerry Durcan SC, for the State, said that the primary obligation to protect the interests and rights of a child lay with its parents and the power of the State to intervene was a default power.
There was no positive obligation on the State to establish and maintain such a register.
The prescribed statutory form for a guardianship agreement indicated that it should be kept in a safe place, and the State was entitled to assume parents would protect the interests of their children by doing so.
He said there was not a single case where the European Court of Human Rights had criticised a failure to keep such a register.
Decision
Mr Justice O’Neill referred to decisions of the Supreme Court which had stated that parents should have primary responsibility for their child’s upbringing and welfare.
“I am satisfied that the State is entitled to expect parents to take reasonable precautions in the interests of their children, which would include looking after a guardianship agreement,” he added.
All that needed to be done was to create a number of copies, have them certified if desired, and place them in safekeeping, thus eliminating all risks of loss or destruction.
A central register was unnecessary, he said.
He added that he was satisfied the absence of a public register did not violate a child’s rights under Article 40.3 of the Constitution, vindicating personal rights.
Referring to the question of discrimination between marital and non-marital children, he said that while marital children have the benefit of having their guardianship disclosed by inference from their parents’ marriage certificate, this was not the primary purpose of the register of marriages.
Other types of guardianship that could arise, for example, a testamentary guardian in the event of the death of one or both parents, was not the subject of a central register.
He said there was no violation of the child’s rights under the European Convention, as there was no direct and immediate link between the interest of the applicant – guarding against the loss of the agreement – and the introduction of the public register sought.
Such risk could be eliminated in the way suggested.
Turning to the issue of locus standi which had been raised by the State, he said that the mere fact that the apprehended harm was contingent and remote did not mean it could not be litigated, so the applicant did have locus standi.
He said that the introduction of the register as sought would involve the consideration of a whole variety of policy questions, which are the exclusive preserve of the executive and the Oireachtas under the separation of powers doctrine.
It may well be the case that the introduction of such a register would be a desirable social reform, but this was a matter for the executive and the Oireachtas.
He refused to find the failure to establish and maintain a register of guardianship agreements to be a breach of the applicant’s constitutional and convention rights.
The full judgement is on www.courts.ie
Inge Clissman SC and Paul Hutchinson BL, instructed by Ahern OShea solicitors, Dublin, for the applicant; Gerry Durcan SC and Eilis Brennan BL, instructed by the Chief State Solicitor, for the State