The recent High Court decision in J. McB. v L.E. confirms the precarious nature of the rights of non-marital fathers. The Court ruled that the removal of the children in the case from Ireland to the UK, without the consent of the father, was lawful.
The father and the mother had been involved in a relationship for several years but did not marry. However the father had never sought or formally obtained any rights in respect of his children. Their relationship broke down and in July 2009, without notice to the father, the mother removed the children from Ireland and brought them to England to live. The father then brought proceedings in Ireland seeking to be appointed a joint guardian of the children and seeking joint custody of the children and to regulate access. In addition he sought a declaration that the removal of the children from their home in Ireland and their continued retention outside of the jurisdiction was wrongful and therefore ‘child abduction’ within the meaning of the relevant Hague and Brussels Conventions.
In relation to the issue of alleged child abduction, the Court had to determine the ‘habitual residence’ of the children in July 2009 when the children were removed from Ireland and in December 2009 when the proceedings in Ireland were brought. It was not disputed that the habitual residence of the children in July 2009 was Ireland. The question then to be determined was whether there was a wrongful removal of the children from Ireland. This depended on whether the father, under Irish law, could be deemed to have “rights of custody” for the purposes of the relevant child abduction Conventions prior to July 2009.
The Court considered that the father’s case hinged on ascribing rights to him which derive from his claim to be a member of a “de facto family”. However, following the decision of the Supreme Court in McD v L, the Court noted that there is no institution of a de facto family under Irish law. Therefore the Court held that at the time of the children’s removal from Ireland the father merely had the right to apply to Court to have the question of guardianship, custody and access rights determined. However, because the father had not exercised his right to apply for such rights prior to July 2009, he had no legal basis to challenge the children’s removal.
The Court then went on to consider the habitual residence of the children when the case commenced in December 2009. If their habitual residence was still in Ireland, then the retention of the children by the mother in England would be unlawful as the father had by that time applied to Court. The Court held that, in the case of the child of unmarried parents and where the father does not have “rights of custody” at the time of movement of the child, then it is the intention of the mother which must be considered and ascertained as she is the only person who has lawful authority to determine the place of residence of the child. Under the facts of this case, the Court held that the retention of the children in the UK by the mother was not wrongful as her intention was to move to England on a permanent basis in July 2009 with a view to establishing a new life there. The Court found that by December 2009, the mother and the children had been living in England for five months and based on the facts of this case the children were habitually resident in England by the time the Irish Court came to deal with the matter. As a further consequence of the Court’s decision, all future issues concerning the children were a matter for the English Courts to decide.
The automatic rights of the non-marital father in respect of children continue to be very limited in Ireland. Essentially non-marital fathers merely have a ‘right to apply for rights’, rather than any substantive rights per se. Non-marital fathers are therefore advised to regularise their rights in respect of their children. At a minimum this would involve seeking to be appointed a joint guardian of a child with the mother. This can be done through a straight-forward statutory declaration sworn by the parents. However it is preferable that joint guardianship be established by Court Order, which can be done with the consent of both parents.