ANALYSIS:The High Court has stated that in family law the Constitution has priority over European law, writes CAROL COULTERLegal Affairs Editor
FOR THE second time in a year, the courts have stressed that there is no such thing as a “de facto family” in Irish law.
Yesterday’s High Court ruling has also made clear that the passing of the Lisbon Treaty does not alter the primacy of the Irish Constitution in relation to the family.
The issue of the “de facto family” previously arose in relation to a lesbian couple who had a baby with the sperm of a male friend. He later sought access to the child, and the couple opposed it, asserting their rights as a “de facto” family. This argument was rejected by the Supreme Court in December 2009, which ruled that such did not exist in Irish law, and that the child had the right to know his biological father.
The case decided yesterday is very different, in that here the unmarried father of three children had sought to have the children returned to Ireland from the UK under the Hague Convention on Child Abduction. He failed, on the basis that as an unmarried father he had no automatic rights, other than the right to seek guardianship, and he had not sought this through the courts.
“This right of application was not exercised. Had the father made such an application the outcome of this case could well have been radically different,” Mr Justice Mac Menamin said in his judgment.
Had the application been made to the District Court prior to the removal of the children, and even if no decision had yet been made, the Irish courts, not the father, would have had “right of custody” over the children. They then could not have been lawfully removed from Ireland by their mother, and their return could have been sought by the Irish courts.
It was argued that the father had rights under the European Convention on Human Rights and the jurisprudence of the Strasbourg court, which recognised the existence of “de facto families”.
Mr Justice Mac Menamin pointed out that the Strasbourg court had acknowledged there was no European consensus on this issue. However, he stated that the fundamental issue was the position accorded the marital family under the Irish Constitution. Repeatedly, the Irish courts had found that this meant an unmarried father did not have equal status with a married one,
During the Lisbon Treaty debate fears were expressed that the treaty would allow EU law supersede Irish law in relation to the family. Mr Justice Mac Menamin has explicitly rejected this in the section of his judgment exploring the relationship between EU law, the jurisprudence of the European Court of Human Rights, the EU Charter of Fundamental Rights and the Irish Constitution.
He pointed out that in the lesbian mother’s judgment the Chief Justice had said that the European Convention on Human Rights could only become part of domestic law to the extent determined by the Oireachtas, subject to the Constitution.
He added that the issue of “family rights” under EC law had arisen only obliquely so far, in relation to issues like freedom of movement and employment, and the definition of the family had not arisen in EC law. While his ruling dealt with matters relating to family law, it will have a wider application in relation to other issues where the rulings of the Strasbourg court are relied on.