Guardianship rights for unmarried fathers

Written by Vanessa Crowley

Landmark reforms to family law are to allow unmarried fathers’ automatic guardianship rights

As widely reported over the last number of weeks, many sections of the Children and Family Relationships Act 2015 were commenced on 18th January 2016.

Approximately 36% of children are born outside of marriage each year in Ireland and prior to the commencement of this Act only the mother of those children had guaranteed guardianship status.

The 2015 Act has heralded a new era for family law as it addresses the long ignored position of the unmarried father and finally allows for automatic guardianship where the cohabitation requirement is met.

As a guardian of a child the unmarried father will have a say in where that child will live, go to school and in what religion, if any, the child will be raised. His permission will also be required for medical treatment and to secure a passport for the child.

Automatic guardianship will only be granted to unmarried fathers who have lived with the mother of the child for a minimum of 12 months, which must include at least three months after the birth of the child.

However, the change is not retrospective; a father currently cohabiting with the mother of his child will not have guardianship rights until 12 months from the date of commencement, 18 January 2016.

Barnardos has said that the new provision “recognises and values the commitment of fathers to their children, and by applying a cohabitation clause, ensures that fathers who do not wish or intend to be involved in their child’s life are not automatic guardians”.

However, this does not reflect reality, as in many cases it is simply not possible for an unmarried father to meet the cohabitation requirement as it not always appropriate or possible depending on the circumstances. Where it will further fail fathers is where the relationship with the mother breaks down preventing the father from “earning” their rights to the child.

Up to this point the only ways in which an unmarried father could secure guardianship was by both parents signing a Statutory Declaration reflecting their agreement; or by applying to court to seek an order to make him a guardian where this is in the best interests of the child.

This piece of legislation recognises the international standard that every child “as far as possible” has “the right to know and be cared for by his or her parents”, as is underlined in the United Nations Convention on the Rights of the Child.

Although a major step forward, there is nothing in the Act to provide for unmarried fathers who do not live with the mother of their child but may nonetheless have a strong relationship with the child. It is regrettable that the legislation does not go far enough to benefit these fathers and that such fathers still have to seek court intervention or the permission of the mother to establish a legal relationship with their child. Treoir believes that unmarried fathers, like married fathers, should be the automatic guardians of their children. In 2011 the Law Reform Commission recommended that a non-marital father should automatically be a joint guardian of the child with the child’s mother. There are a number of countries where unmarried fathers are the automatic guardians of their children, including Northern Ireland, Britain, Australia and many European countries. In these countries, where an unmarried father jointly registers the birth of the child with the mother, he will have an automatic right to guardianship of that child; the Republic of Ireland has denied unmarried fathers this right.

This new approach correctly recognises and values the need to address gender-based discrimination, giving fathers a much stronger legal status. It also gives legal recognition and clarity to non-traditional family units and is a welcome modernisation of Irish law. It is hoped that further progress will be made in which Ireland will attain the international standard for unmarried fathers and whether these different options now available will provide clarity or cause confusion awaits to be seen.

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