THE RECENT European Court of Human Rights judgment on the rights of an unmarried father may have far-reaching implications for Ireland, writes Geoffrey Shannon.

The court recently handed down a very important decision on joint custody that may have far reaching implications for the rights of unmarried fathers in Ireland. Joint custody involves a child residing with each parent for a stipulated period.

The significance of this ruling, however, derives from the rights it attributes to marriage-like relationships rather than its consideration of joint custody per se.

Under Irish law, unmarried fathers 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”). Nor do unmarried fathers have a right to joint custody. Rather, they have a statutory right to apply for guardianship, custody or joint custody, which will be determined according to the nature of the relationship between the child and the unmarried father.

Following the recent decision of the European Court of Human Rights in Zaunegger v Germany, the Irish law governing the attribution of guardianship, custody and joint custody should be reviewed to determine its compatibility with the European Convention on Human Rights.

In this case the European Court of Human Rights held that there had been a violation of the convention on human rights in the case of an unmarried father who was denied a judicial review of a statutory provision making joint custody dependant on the birth mother’s approval.

Of particular importance in this case was the fact that the relationship between the applicant and his partner had lasted five years until their separation in August 1998. The child – the subject of the joint custody application – lived with the applicant until January 2001 when she moved to his partner’s apartment.

In June 2001, the parties reached an agreement on access. Shortly thereafter, the applicant applied to the Cologne District Court for joint custody as his partner was unwilling to consent to it, although otherwise the applicant and his partner were co-operative and on good terms. In June 2003 the Cologne District Court dismissed his application stating that there was no legal basis in Germany for a joint custody order in the absence of agreement between the parties. This decision was upheld by the Cologne Court of Appeal.

The European Court of Human Rights held that “family life” existed between the applicant and his partner for the purposes of the convention on human rights. It reiterated the notion of family under the convention, stating that the convention makes no distinction between the family life of a marital and non-marital family.

The court held that the mutual enjoyment by a parent and child of each other’s company constitutes a fundamental element of family life, even when the relationship between the parents has broken down.

Domestic legislative provisions which hinder such enjoyment therefore amount to an interference with the right to family life protected by the convention unless they can be said to be necessary and proportionate.

The European Court of Human Rights held that by dismissing the applicant’s request for joint custody without examining whether it would be in the child’s best interests, the German courts had treated him differently in considering his joint custody application in comparison with the mother and in comparison with married fathers.

It held that, even though the European Court of Human Rights afford contracting states a wide margin of appreciation in custody cases, the difference in treatment in this case was discriminatory as it had no objective and reasonable justification.

The court held that substantial grounds for justification will be required in instances of a gender bias or bias on the grounds of birth or other status. The justification argument will therefore fail if any differential treatment does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means used and aim sought.

The European Convention on Human Rights came into force in Ireland at the end of 2003. It requires the Irish courts to interpret Irish law in a manner compatible with the convention. One of the rights considered in Zaunegger was the right to “family life”.

This is an issue that was highlighted in a previous case before the European Court of Human Rights, Keegan v Ireland, a case referred to in Zaunegger. In the Keegan case, involving primarily the question of an unmarried father’s right to be consulted in relation to the adoption of his child, the court held that the father’s rights under the convention had been violated.

The European Convention on Human Rights was applicable, the court 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.

There is now a need for robust legislation in this area. The European Court of Human Rights summarises the position in Zaunegger in the following terms: “While having regard to the wide margin of appreciation of the authorities, in particular when deciding on custody-related matters, the Court also considers the evolving European context in this sphere and the growing number of unmarried parents.”

The Law Reform Commission recently published a consultation paper on Legal Aspects of Family Relationships, which considers a statutory presumption in favour of granting unmarried fathers an order for guardianship unless the welfare of the child dictated otherwise.

It also makes a number of other recommendations and provides a template for reform of the law in this area to ensure Irish law is in conformity with the European Convention on Human Rights. The onus is now on the Oireachtas to put in place the reforms alluded to in the commission’s consultation paper.

Geoffrey Shannon is a solicitor and author of Child Law (published by Thomson Reuters)