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No 'de facto' family in Ireland for unwed father - Irish Times Mon 17th May 2010

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The Irish Times - Monday, May 17, 2010

No 'de facto' family in Ireland for unwed father

J McB -v- L E Neutral citation (2010) IEHC 123 High Court 

Judgment was delivered on April 28th, 2010, by Mr Justice John MacMenamin


An unmarried father of three who had not applied for guardianship of his children did not have legal custody, and therefore could not seek under the Hague Convention on Child Abduction to have them returned from the UK to which they had been taken by their mother without his consent.


The couple met in 1999 when the father, who is Irish, was living in England. The mother, who is English, was 20, and had two children from a previous relationship. The older of these lived with her grandparents and the younger with his mother, where he was reared as a member of the family along with the children she had with the applicant. The boy was unaware until recently he was not the son of the applicant.

The couple had three children, now aged nine, seven and two. The family lived together in England, the Republic of Ireland, Australia and Northern Ireland, before moving to the Republic, close to the father’s family home, in 2007. Both parents had had brushes with the police in England, and it was claimed in the English proceedings that the father was violent. However, Mr Justice MacMenamin said it was not the function of the court to deal with the merits of the case, but only the issues of law, in particular whether the issues of custody and access should be dealt with here or in England.

The relationship between the couple deteriorated over the Christmas period in 2008 and, on January 26th, 2009, the father was served with an application for an interim barring order. He left the family home. In about April 2009 they were reconciled and they decided to get married. However, the mother expressed concern that he was only marrying her in order to obtain guardianship of the children.

In July, she went to a women’s refuge, claiming the father was controlling and violent and drank too much. On July 25th she left for England with the children. There the two elder children entered school. One of them started receiving treatment for a congenital eye condition, while the older ones joined the local football club and are involved in other activities. They have also made friends locally and have many cousins living nearby.

In early July 2009, the father asked his solicitor to make an application to the District Court for guardianship. In order to invoke the jurisdiction of the District Court, the mother would have had to be served with the proceedings. However, this was not done “for some unexplained reason” in the days before she left Ireland, or at any stage afterwards.

Referring to the mother’s conduct in removing the children, Mr Justice MacMenamin said that the effect of her action was to deprive the applicant of the opportunity for day-to-day access. “I think this was reprehensible,” he said.

The father took proceedings under the Hague Convention seeking a declaration that the children were wrongfully removed, which came up in the High Court in December. He also sought guardianship and joint custody.


Mr Justice MacMenamin said it was necessary to identify the rights of the father in Irish law, and whether any of these rights could be deemed “rights of custody” under the Hague Convention, and to determine the issue of the habitual residence of the children at the time the proceedings were initiated in December.

He said that the 1991 Act bringing the Hague Convention into Irish law had been amended in 2005 to embody the European Council regulation known as Brussels IIR, which deals with the jurisdiction of member states in relation to divorce, legal separation, annulments and parental responsibility.

This meant that where two member states were concerned, references to the Hague Convention are deemed to include references to the council regulation.

Counsel for the applicant had argued that the term “right of custody” had a broader meaning in the council regulation than in the Hague Convention, and included the jurisprudence of the European Court of Human Rights, which gave recognition to a “de facto” family. Under this interpretation, a father who had not formally acquired any statutory rights had “rights of custody”.

However, Mr Justice MacMenamin said the jurisprudence of the ECtHR was by no means clear in protecting the relationship between unmarried fathers and their children, and had stated that there could be an objective and reasonable justification for the difference in treatment between married and unmarried fathers. “Even were EU law to provide a vehicle for the applicant to bring Strasbourg ‘rights’ to bear, such rights would not avail him,” he said.

Turning to the rights of the father in Irish law, he said that following the Supreme Court decision, in McD -v- L, the court was precluded from giving recognition to the concept of the de facto family. The father had no constitutionally recognised rights of guardianship, custody or access, but only the right to apply to court.

The manner in which recognition was given in national courts to judgments of the ECtHR had also been explicitly and authoritatively outlined, meaning that its jurisprudence was to be applied insofar as it was compatible with the terms of the Constitution.

The European Court of Justice had little to say about family rights and these were seen as falling within the remit of the national courts. Nor did the Charter of Fundamental Rights carry any radical change to the sources of law in this area.

It had not been shown that any part of national jurisprudence lies outside the consensus or margin of appreciation enjoyed by member states of either the European Convention on Human Rights or the EU.

He said this case was different from GT -v- KAO (also involving unmarried parents in an application under the Hague Convention), in that here, both the High Court and the Supreme Court found the service of District Court proceedings by the applicant father on the respondent mother (seeking guardianship) meant the court had “right of custody”, which had been breached.

Insofar as the High Court had, in that case, recognised the applicant’s role within the family unit as conferring upon him rights of custody, this had been superseded by the findings of the Supreme Court in McD -v- L.

He therefore found that there had been no breach of a “right of custody”, and that the habitual residence of the children was England, given that they had been lawfully removed by their mother and were now clearly settled there. The father would have a full opportunity to make submissions and be represented there in relation to custody of and access to the children.

The full judgment is on



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