Irish Dad Loses Children to Move-Away Mom; Case Shows Need for Guardianship of Children Law

In March, I reported here on a bill before the Irish Parliament that would equalize the rights of single mothers and fathers in child custody (called “guardianship” in Ireland) matters. If passed, the Guardianship of Children bill would finally end the discrimination against single fathers that now exists. Put simply, an unmarried mother has full parental rights in Ireland; the unmarried father of her child does not. As it now stands, he must employ an attorney, go to court and apply for guardianship rights; no such onus is placed on her.

The Guardianship of Children bill would change that. It reads in part,

Subject to the subsequent provisions of this section, the father and mother of a child shall be guardians of the child jointly irrespective of their marital status.

There are exceptions for children conceived via rape (statutory or forcible) and incest.

Meanwhile, this article makes it abundantly clear why the Irish Parliament needs to pass the Guardianship of Children bill as soon as possible (Irish Times, 4/29/10).

An unnamed woman and man had a 10-year relationship. They have three children, aged two, seven and nine, but never tied the knot. So when she got mad at him last July, allegedly for being drunk while on childcare duty, she packed up the children and took them to England. He applied to the Irish courts for an order to get his kids back and, because he’s unmarried and a man, was denied. The court explained that,

The mother”s removal of the children in July last year just weeks after terminating her relationship with the father did not breach his rights under Irish law and was not wrongful within the terms of the Hague Convention on Child Abduction and/or the relevant EC regulation (the Brussels Regulation), the judge ruled yesterday.

Her abduction didn’t violate his rights because, as a single father, he had none. And the Hague Convention can only be used by parents who have rights of custody under the laws of their country of residence. In Ireland at present, single fathers have no such rights, absent a court order.

The Irish court recognized the woman’s actions as “reprehensible.” But under existing statutory law, it has no authority to order her to return to Ireland, or to order access to his children on the dad’s behalf. Because the court clearly considers existing law to be ill-advised, it none too subtlely urged the Irish Parliament to pass the Guardianship of Children bill “to ensure the law evolves in such a manner as to keep pace with social change.”

The “social change” referred to is the massive increase in nonmarital childbirth that’s taken place in the past 40 years or so. In the U.S. some 40% of births are now to unmarried women which is about eight times the rate logged in the mid-sixties. Ireland tracks that trend closely; there, the rate of nonmarital childbirth rose from 5% of all births in 1970 to 32% in 2000.

Of course, just because a woman is single when she gives birth doesn’t mean the father is as well, but it’s very likely. So the issue of single fathers’ parental rights is significant. In the United States, about 1.6 million children a year have fathers who are unmarried. Both the Irish Labor Party and the court in the case reported on recognize both the patent anti-father discrimination of the current law and its propensity for depriving children of their fathers. It’s up to the Parliament to do something about both.

Interestingly, the article includes this little nugget towards the end:

The judge noted that the relationship improved for a time when the couple agreed to get married but that did not proceed after the woman later suggested the man was marrying her only to become joint guardian of the children.

So the man wanted to marry, the woman initially agreed, but later refused because she perceived that he only wanted to establish his rights to custody. Of course, given the state of Irish law, what father wouldn’t want to do that? It’s by far his best – and almost his only – way to establish his parental rights.

That’s an important issue to understand; it takes two to marry. That means that in a country with laws like Ireland’s, a mother holds considerable power over a single father’s parental rights. If she agrees to marry, his rights miraculously spring forth like green plants in the desert; if she doesn’t, it’s his tough luck and that of his children. As we’ve seen so often before in the U.S. and elsewhere, the law places the parental rights of single dads squarely in the hands of the mothers who bear their children.

It’s a situation that needs to change.

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