Yet again, in yesterday's ruling on the Mr G case, a court has been forced effectively to take the place of the legislature, dealing with a sensitive but urgent issue with virtually no help from our lawmakers. The High Court's decision that an unmarried father who was the main carer of twins has rights in relation to his children is welcome.
That this should be a ground-breaking decision, however, is itself an indictment of the failure of the Oireachtas to recognise and make provision for changes in Irish society that have been as obvious as they are profound. Cohabitation and the birth of children outside of marriage are established features of Irish society. The rate of non-marital births has risen from 3 per cent in 1973 to 32 per cent now. The total number of cohabiting couples was 121,800 in 2006, almost 12 per cent of all Irish families. However much the State may prefer to see marriage as the norm, it simply cannot leave such families in legal limbo. Yet, until yesterday, the position has been that unmarried fathers have no constitutional rights in relation to their children.
It has been clear for some time, however, that this position is untenable, not just socially, but also legally. As long ago as 1994, in the case of Keegan v Ireland, the European Court of Human Rights ruled that the protections outlined in the European Convention on Human Rights are not confined solely to marriage-based relationships and may encompass other de facto family ties where the parties are living together outside of marriage.
Two years later, the Constitution Review Group considered the implications of this ruling for Irish law. It came up with a thoughtful and well-argued recommendation that the Constitution be changed to acknowledge the rights of fathers who have had a stable relationship with the mother of their child, but not of those "who are only biological fathers without any such relationship". This balanced recommendation would maintain the State's support for marriage and recognise the rights of unmarried fathers, without giving such rights to those who have fathered children as a result of casual relationships. Yet nothing has been done to implement it, or to make Irish law compatible with either the human rights convention or current Irish reality.
After yesterday's ruling, the Government and the Oireachtas can no longer avoid their duty to create workable law in this sensitive area. It is not acceptable that every case like Mr G's should have to be referred to the courts for an individual judgment. Nor is it acceptable that unmarried mothers who have no relationship with the fathers of their children should now be left with serious anxieties about their own status. Some good work has already been done by the All-Party Oireachtas Committee on the Constitution, which consulted widely on this very question in 2005. Building on that work, and on the acknowledged need for a referendum on children's rights, the Government must create a new framework for family law appropriate to the realities of modern Ireland.