The Mr G judgment yesterday was fashioned by the European Convention on Human Rights, but Geoffrey Shannonargues that it does not create new rights for unmarried fathers
When you strip away the legalese, the importance of this case is whether the mother of a non-marital child can take that child out of the State and determine its residence without the consent of the father or of the courts.
Up to now it would appear that the mother was in that position. She has both an automatic right to the custody and guardianship of her children. Fathers do not. The courts have determined in the past that a parent with sole custody has the right to determine the residence of the child.
In January, the mother removed the children from Ireland to England without the knowledge or consent of the father.
Mr G had the right to apply for guardianship under Section 6A of the Guardianship of Infants Act 1964, but he had not done this prior to the children's removal from the jurisdiction.
His partner argued that she was entitled to bring the children to England as she enjoyed sole custody of the children. Moreover, Mr G had no active guardianship rights.
She argued, therefore, that this was not an abduction case under the 1980 Hague Convention. Under the abduction convention, child abduction only occurs when the child is removed from a person who has the legal right to custody.
Mr G argued that he had inchoate rights which should be considered as rights of custody. Given his involvement with his children, he argued that an Irish court would likely have granted him guardianship rights had he applied for them. The High Court would appear to have ruled in his favour in this regard, though the court rejected the argument that Mr G had inchoate rights.
The concept of "inchoate rights of custody" was previously considered in the Irish Supreme Court case of H.I. v M.G., a case which the High Court judge felt bound by yesterday. The Supreme Court in H.I. v M.G., by a majority reversing the finding of the High Court, rejected the assertion that regard should be to an undefined body of inchoate rights not recognised by the requesting state.
Chief Justice Keane, as he then was, delivering judgment for the majority, stated that the term "rights of custody" did not embrace "an undefined hinterland of inchoate rights of custody not attributed in any sense by the law of the requesting state to any party asserting them or to the court itself".
The judgment yesterday was decided having regard to the European Convention on Human Rights.
It would appear to suggest that if the father has enjoyed a long relationship with the child, that father, although he has not applied to the courts, can prevent the mother from taking the children out of the jurisdiction without his consent or the consent of the court.
The convention came into force in Ireland at the end of 2003. That requires the court to interpret Irish law in a manner compatible with the convention. One of the rights considered yesterday was the right to family life. The convention, unlike Irish law, makes no distinction between the family life of a marital and non-marital family.
We are not into uncharted waters here. Ireland has been held to account in the past with its failure to bring its laws into line with the European convention.
This is an issue that was highlighted in a previous case before the European Court of Human Rights, Keegan v Ireland. In that case, involving primarily the question of a non-marital father's right to be consulted in relation to the adoption of his child, the court held that the father's rights under Articles 6 and 8 of the convention had been violated. The Court at p. 362, para 51 in particular, noted that:
"he fact that Irish law permitted the secret placement of the child for adoption without the applicant's knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with his right to respect for family life."
Article 8 of the convention was applicable, the European Court of Human Rights emphasised, despite the fact that the natural parents of the child were never married to each other. For two years prior to the making of the adoption order, the mother and father had been living in a stable relationship and that essentially, formed a family for convention purposes.
Mr Justice McKechnie also considered Article 8 of the convention yesterday, stating that Mr G enjoyed Article 8 rights "and that the removal of the children from this jurisdiction without his consent, knowledge or approval interfered with those rights" .
Yesterday's judgment, however, does not create new rights as far as unmarried fathers are concerned. Under Irish law, unmarried fathers still do not have an automatic right to the day to day care of their children (known as "custody") nor do they have an automatic right to a say in the upbringing of their children (known as "guardianship").
We need to equate rights with responsibilities. It is consistent with the judgment of Mr Justice Liam McKechnie that the legislature must now look at this issue and reflect in law the situation where the unmarried father has enjoyed a strong and stable relationship with his child. It should not be dependent on the High Court to decide on a case-by-case basis.
There is now a need for robust legislation in this area. We need to start looking at this issue from the perspective of children. Their rights need to be reflected in legislation. We are too quick to define this issue in terms of fathers' or mothers' rights.
If we put the needs of the children first, we might succeed in obtaining better outcomes for all involved.
• Geoffrey Shannon is an expert in family law in Ireland and Europe