European Court of Justice: Irish Discrimination Against Single Fathers is A-OK

This article updates us on a case I’ve written about before (RTE, 10/5/10).

For about 10 years, an Irish man and woman lived together in that country. They were not married but had three children together. Last year, she abducted all three children to England. The father petitioned courts in Ireland, England and an EU court in Luxembourg, and all three agree; what the mother did is perfectly acceptable and legal.

How can that be? Well, here’s the reasoning as I understand it. In Ireland, unmarried mothers and unmarried fathers are treated differently under the laws governing their parental rights. Mothers have full parental rights by virtue of being mothers. Unmarried fathers, on the other hand, must petition to be recognized as fathers and have their parental rights established by a court of competent jurisdiction. (I’ve written before about a proposed change to Irish law that would establish parental rights for both parents irrespective of their marital status. But that hasn’t been passed and, even if it had, the events in the case occurred before it would have been effective.)

The father in the case linked to hadn’t done that. According to previous articles, he believed that, having been his children’s only father, having helped to support and care for them meant something (a) to the mother and (b) to Irish law. He turned out to have been wrong on both counts.

She initially took the kids to a DV shelter in Ireland and the dad rushed to court to try to secure his rights, but, mysteriously, she was unable to be served with process at the shelter, so his effort to establish his parental rights failed. The mother then took the kids to England where the dad again attempted to get help from a court. That failed too because he hadn’t established his rights in Ireland.

The article is about his latest, and I suspect final, failure at an European Union court in Luxembourg. It too ruled that his failure to secure his rights in an Irish court was fatal to his claims later on.

Now, to those of us among the unwashed masses, there are several problems with all that. The first is that the Irish system blatantly discriminates on the basis of sex. It treats unmarried mothers differently from the way it treats unmarried fathers. Unmarried mothers have parental rights automatically under Irish law; fathers have to go to court. Why the difference? Why the discrimination?

The second is much like the first. By upholding the Irish law in this case, the EU court upheld sex discrimination in the way unmarried parents are treated. Now, it may be that Ireland has no overarching requirement in its legal system that laws not discriminate on the basis of sex. I simply don’t know if it does or not. If it doesn’t, then, however biased, however discriminatory, the law on single mothers and fathers stands until the Irish parliament changes it.

But what I do know is that the European Convention on Human Rights very clearly prohibits discrimination on the basis of sex. What I also know is that it has the power to invalidate laws of member states that don’t comply with the charter’s requirements. Indeed, that’s exactly what happened in the case of Germany only a few months ago. A court ruled that its system that required the mother to agree before a single father could gain parental rights to his children, violated the EU’s convention. Germany is now trying to figure out how to bring its laws into compliance with convention’s strictures.

Sadly for all concerned, the Irish case likely gives the German parliament considerable guidance about what’s acceptable and what isn’t. Specifically, it tells the Germans that, while it’s not OK to place a father’s rights solely in the hands of the mother, it is OK to discriminate against him by forcing him, but not her, to go to court to establish those rights. As I said in my last piece on the German situation, I wouldn’t be surprised to see parliament give single fathers the bare minimum required to comply with its EU membership obligations. This recent Irish case provides an easy-to-follow outline of just how minimal the changes to German law need to be.

So there we have it. The European Union’s Convention on Human Rights prohibits discrimination on the basis of sex. It also mandates “respect for family life.” But, according to the European Court of Justice, neither of those requirements manages to give single fathers parental rights equal to those of single mothers. According to every court that’s heard his case, nothing in Irish, English or European law protects this Irish father or the three children whom he has helped to raise since birth. In none of the documents that supposedly require gender equality is there any word that would keep a single mother from simply kidnapping a single father’s children. And of course nothing in all those laws and precedents protects a child’s rights to its father.

And that, ladies and gentlemen, is called gender equality. Somewhere above the clouds, George Orwell is smiling.

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