An unmarried father who has acted reasonably and dutifully towards his children, has rights of custody over them, a High Court judge has decided.
Mr Justice Liam McKechnie held that the difference in treatment between married and unmarried fathers remained in existence for all purposes, save in respect of an unmarried one whose care for his offspring was indistinguishable from the activities of a married father.
Mr Justice McKechnie was delivering a reserved judgment in the case of Mr G, an unmarried father, who took High Court action to have his two-year-old twin boys returned to him from England. The court had heard that the boys' mother had taken them to England in December of last year and that Mr G was seeking their return under the Hague Convention which covers child abduction.
The judge said that while the retention of the children by their mother was wrongful under Article 2 of the Brussels Regulation, he was not being asked and could not make any order about the return or otherwise of the children.
He said the jurisdiction of the Irish High Court seemed to have been invoked under Article 15 of the Hague Convention and accordingly its function was quite narrow and strict. What was sought was a decision whether or not the removal or retention of the children was wrongful under the convention and Article 2 of the regulation.
Mr Justice McKechnie said the English court proceedings stood adjourned pending his decision on whether or not their removal from Ireland was wrongful and what rights an unmarried father had in respect of his children in the Irish jurisdiction.
He said the couple's relationship was almost entirely spent living like man and wife as part of a de facto family unit. Mr G was a teacher and the mother, Ms O, had been a civil servant who became a professional singer.
While both parties had made mutually hostile attacks on each other in allegation and counter allegation, the real dispute turned on a claim by Mr G that he was the children's primary carer.
The judge said Ms O had fairly conceded that her partner had performed duties and had undertaken parental responsibilities and nurtured them at all times after their birth which he had attended. It was not disputed that most frequently he had got the children up in the mornings, washed, dressed and fed them and had taken them to and from school.
Mr G had been very much involved with his children in all aspects of their development and upbringing.
There had been no dispute but that Ireland was their place of residence. The retention of the boys in England, following early proceedings over custody in the District Court here, was in breach of the rights of custody vested in the court.
Judge McKechnie said the rights of an unmarried father had been established by the Supreme Court here with near certainty and it would not be possible to reinterpret them under any legal convention or Act. Mr G, through his counsel, Michael McDowell SC, had recognised that under the law he had no constitutional rights to his child.
He said the vast majority of people might readily agree that parenthood, by itself and no more, may give very few rights, if any, to a natural father. Examples of circumstances at this end of the spectrum were numerous and very definitely included casual encounters, rape and incest.
"But what about a person who fathers a child within an established relationship, and who from the moment of birth, nurtures, protects and safeguards his child to a standard which all too frequently married fathers fail to live up to?"
More than 10 years ago, Mr Justice Murphy had noted that long-term relationships, having many of the characteristics of a family based on marriage, had become commonplace and relationships which would have been the cause of grave embarrassment a generation previously were then and were now widely accepted.
He asked if anyone could possibly object to what Chief Justice Thomas Finlay had said about such relationships as "having nearly all of the characteristics of a constitutionally protected family and where the rights of the father would be very extensive indeed".
Mr Justice McKechnie said a father fulfilling a parenting role of the type he had described did have rights referable to his child.