ACCESS – AN INSTRUMENT USED FOR REVENGE

I attended the District Court recently with my client, a father of two young girls. My client admitted to his wife that he had been having an affair for the last two months, bringing their 6 year marriage to an end. My client was distraught and understandably so was his wife. She had never suspected that her husband was cheating; in fact she had assumed that everything was going well between them.

It is fair to point the finger of blame at my client; he did have an affair and the marriage had consequently ended. Although my client does not love his wife, he does love his children.

Should my client be punished for having an affair? Perhaps!

Should the children be punished because their father had an affair? Absolutely not!

Access concerns the rights of the child. The UN Convention on the Rights of the Child states that a child who is separated from a parent has the right to maintain personal relations and direct contact with that parent on a regular basis, except if it is contrary to the child’s best interests. The best interests and welfare of the child are paramount and form the over-riding principle that ought to be applied by the Irish courts.

In this particular case, my client was distraught because his wife refused him access to his children after she had thrown him out of the family home. We openly admitted to the judge what had happened but explained to the judge that my client’s actions do not reflect on his ability to be a good father. I informed the judge that in the present case Access was being taken away from my client in an act of revenge by the mother, but the only people suffering were their two children. Fortunately, the judge agreed and a 50% access schedule was drawn up.



Laura Gillen
Brophy Solicitors
 

THE CHILDREN AND FAMILY RELATIONSHIP BILL: THE GOOD FATHER TEST

The Children and Family Relationship Bill aims to create a legal structure to deal with modern families in a changing society. For the most part, I welcome the proposed changes and accept that they are certainly a step in the right direction particularly towards reaching equal rights for fathers and mothers. To say however that we have reached equality or indeed anywhere near it, is simply untrue. 

The Irish Constitution places great importance on the family and defines it as “the natural, primary and fundamental unit group of society” (Art. 41). However, the Courts have narrowly interpreted the constitutional family as only including marital families. Cohabiting couples, lone parents, unmarried fathers and grandparents are excluded from this definition. While unmarried mothers are recognised as the automatic guardians of their children, the same rights do not flow to unmarried fathers. Currently in Ireland under section 22(2)(a) of the Civil Registration Act 2004, where a child is born to unmarried parents, they must make a written request to the Registrar for joint registration of the birth. The father must sign a declaration that he is the father of the child. Both the mother and the father must attend at the Registrar’s office to sign the register. Alternatively, it is also possible to register both names of non-marital parents on the birth certificate if an application is made to the courts by the mother or the father and accompanied by a written declaration by the applicant that the man is the father of the child and a statutory declaration by the mother that the man is the father of the child.

The revised provision specifies that an unmarried father will automatically become a guardian of his child. Sounds great, doesn’t it? However it would appear that the courts will simultaneously be deciding whether or not a father is fit to be a guardian based on his relationship with the mother. Yes you read that correctly ‘based on his relationship with the mother’! 

The father will only automatically be a guardian of your child if the father lives with the child’s mother for at least 12 months, including 3 months following the child’s birth. What happens when the relationship breaks down, for whatever reason, and mum says dad only lived with us for 10 months? Do we make an application to an already backlogged District Court trying to prove the father resided in the house for more than 12 months? 

If the father passes the “12 month residency with mum test”, then we automatically assume dad is a super father and make him a joint guardian? What happens when mum makes it impossible for dad to live with her, or the relationship breaks down or dad moves elsewhere with his work - does this mean he is an undeserving father and not entitled to be a guardian of his child? 

It is of course important to have safeguards in place to avoid the automatic granting of guardianship to unmarried fathers where it may not be in the best interests of the child. This is especially crucial for example where the mother has been a victim of domestic violence and/or has become pregnant through rape. It is proposed that the Court may on application by a guardian or a proposed guardian make an order terminating the guardianship of a guardian appointed under the conditions in which automatic guardianship is granted, where the court is satisfied that it is in the best interests of the child that such guardianship be terminated, and:-

(a) the guardian whose guardianship is to be terminated consents to the termination,

(b) the guardian whose guardianship is to be terminated is unable or unwilling to exercise the powers, responsibilities and entitlements of guardianship in respect of the child,

(c) the guardian whose guardianship is to be terminated has failed in his duty towards the child to such extent that the safety or welfare of the child is likely to be prejudicially affected if the guardianship is not terminated, or

(d) for substantial reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so.

A father’s commitment to his child surely cannot be linked to a father’s commitment to his child’s mother. As a strong advocate of father’s rights I believe this is just another hurdle in the long and difficult journey many fathers have to take.

For further queries, please feel free to email me at laura[at]brophysolicitors.ie

Laura Gillen