Unmarried father loses guardian case

Klingon Hamlet

Article here:

The High Court has ruled that an unmarried father whose three children were brought to England without his consent is not entitled to be appointed their guardian.

The court also refused to order that the man be granted joint custody of the children or to make orders in relation to access.


In what he described as a difficult and troubling case, Mr Justice John McMenamin also ruled that the removal of the children from Ireland and their continued retention outside the State was not 'wrongful' under the Hague Convention or under a European Council regulation.



The reason for this was because the father did not have custody rights as he had never applied to a court for guardianship.


The judge said that proposals for reform in the law on the issues in this case had been mooted over a number of years.


But he said a court must refrain from making any comment on such questions as its obligation was to interpret and apply the law as it presently stands.


The children who are aged nine, seven and two were taken by their mother to England in July last year.


She claimed this was due to an incident in which she found their father drunk while in charge of the children.


The court had heard that the long relationship between the two parents had been unstable and unhappy.


The judge concluded that when the proceedings were begun by the father in December, the 'habitual residence' of the children was England.


He described the mother's decision to deprive the father of the opportunity for day to day access to the children as 'reprehensible'.


But he found that the father did not have any 'rights of custody' of the children under the Hague Convention as he never applied to a court to be made a guardian of the children, for reasons which were not explained.


Mr Justice McMenamin also ruled that following a recent Supreme Court decision in the case of a sperm donor who wished to have access to his child, there was no recognition under the Irish Constitution of the concept of a 'de facto' family.


The judge also pointed out that to grant the reliefs sought by the man would involve giving no voice to the views of the children because there was no scope in these proceedings for their views to be heard or assessed.
The matter has also been brought before the English High Court.

If Labour press ahead with their Guardianship of Children Bill 2010 then this kind of loophole will close forever.


I wonder why the dad waited so long to apply for guardianship?


Also it's sad to note the judge's main reasons for refusing him any rights to his kids:


Didn't apply for guardianship
Kids were habitually resident---as in were living ther long enough not to be moved back
Kids had "no say"---I wonder why the judge would not consider this both ways?
Supreme Court refused to define "de facto family".


In other words, the book of law with no allowance for emotion. Maybe I'm a mushy idealist but surely a judge who described the mother's decision to deprive the father of the opportunity for day to day access to the children as 'reprehensible' would see her prioriteis/morals as being a bit skewed?


It's very sad. I hope the UK court can help the dad. Right now, he has no rights whatsoever!

smelltheglove

Even as a former single mother I find it unacceptable that fathers do not automatically have rights to their children in any way or form. Surely it is a bit dated now that only married fathers have rights and many men would not be aware of this, possibly the father in this case did not know until the children were taken away.

CrazyRabbit

Shocking to think that being the biological parent doesn't actually give you any parental rights. Apparently a piece of paper has more value in determining your rights.

Moonbeam

I wonder does she still expect maintenance from him?

Maybe he didn't apply for Guardian rights because he was the dad and never thought he would need them,maybe he planned to marry the mother at some stage.

It is a horrible situation for him and I don't think it should be the way that it is.

Klingon Hamlet

Ray Kelly of the Unmarried and Seperated Families of Ireland will be on the radio at 10:30pm tonight----106FM----about this case.

It'll be interesting to see how the UK side of things play out, and the Supreme Court hearing here (if any).

Kristopherus

AFAIK the UK courts have already gone against the father as well.

pfm

Was furious when I read about this case. This woman is engaging in child abuse by denying them their father. There are very few people in the public domain fighting for men like this, John Waters being one of them.

Nevyn

The thing is currently legally she is not doing anything wrong, morally is another matter entirely.

pfm

Thaedydal wrote: »

The thing is currently legally she is not doing anything wrong, morally is another matter entirely.

Yes, I don't doubt that the High Court judge knows the law. It's indicative that feminism has gone too far in certain respects that such sexist law exists. Imagine if the genders were reversed!

Kristopherus

Is this not the case where one of the children told the UK court that she did not want to go back to her dad because he was violent? Or am I thinking of a completely different case?

coffee_cake

pfm wrote: »

Yes, I don't doubt that the High Court judge knows the law. It's indicative that feminism has gone too far in certain respects that such sexist law exists. Imagine if the genders were reversed!

I'm pretty sure that used to be the case indeed, and now it's been reversed?
Either way it's morally very wrong. They really need to have access from both parents and guardianship to whomever is actually suitable, not the default gender.

Nevyn

pfm wrote: »

Yes, I don't doubt that the High Court judge knows the law. It's indicative that feminism has gone too far in certain respects that such sexist law exists. Imagine if the genders were reversed!

It is sexist but Feminism has had little do to do with, the law which is in place on this goes back to the original constitution which feminism had very little to do with. Many women are trapped by being the assumed only legal guardian of their child if they are not married. It was under British law that the husband was the guardian of all the children and if marital break down happened she would not see them again.

I do agree that children should not be denied their fathers and we need child centric policies on guardianship, custody and visitation and child court advocates and proper assessments but the will and funding for it doesn't seem to be there as it means over hauling the while family law system.

pfm

Kristopherus wrote: »

Is this not the case where one of the children told the UK court that she did not want to go back to her dad because he was violent? Or am I thinking of a completely different case?

I don't know but it wasn't mentioned in the RTE reporting. The mother did claim that she took the children to England after finding the father drunk while looking after the kids, a claim which is impossible to prove or disprove without independent witnesses. Presumably she would have raised the issue of violence if it existed.

smelltheglove

pfm wrote: »

I don't know but it wasn't mentioned in the RTE reporting. The mother did claim that she took the children to England after finding the father drunk while looking after the kids, a claim which is impossible to prove or disprove without independent witnesses. Presumably she would have raised the issue of violence if it existed.

Something you hear often enough though in custody battles and lets be honest there are probably very few of us who havent, on occasion of celebration, had a drink whilst the kids are in our care! There is nothing immoral about it, nothing wrong about it if it is done in a controlled manner and nothing unusual about it. My kids are in bed now and I'm sitting here on boards and doing work with a nice drink beside me, does that make me unworthy of my children???

Another thing, imagine it was he who left the country, he'd probably be chased for maintenance and called all names under the sun!

gaeilgegrinds1

Increase of engagement rings I think! Get thee to a jeweller! In fairness tis ridiculous though.

Klingon Hamlet

Newstalk 106...give it a listen!

cbyrd

while i agree that the rights of unmarried fathers in this country are ignored to the point of be discrimatory, in this particular case the dad sounds like a bit of a plonker.. i'm not being funny but if the kids lived in England for ages and he hadn't applied for guardianship then, to be honest he didn't have a leg to stand on.

being drunk in charge of small kids is worrying.. what if something happened to one of them.. a responsible parent would get a babysitter. and why did it take him 5 months to begin proceedings??

there's 3 versions of the truth here, hers, his and the actual truth..the judge was acting within the parameters of the law flawed though it definately is.. he cannot change it, as regards the guardianship...it's like expecting to win a lotto without getting the ticket..
it's automatically assumed in a marriage that the man is the dad.. not so with an unmarried couple, same with the law regarding inheritance and rights when splitting up, it's all to protect and encourage marriage.. dumb law and it hasn't moved with the times..
And i'm not being unsympathetic, i have a brother who split up with his fianceé (he was dumped) when they're little man was 4 months old and he still hasn't gone for guardianship because he assumes they'll always be on good terms..but you just never know.. better safe than sorry:rolleyes: and my brother in law has gone to court several time over the last 18 years to get custody and access.
every case has to be judged on it's own merits and it has been made to sound like the dad just didn't have the sense to make sure he always has a place in his kids life.. and as for her engaging in child abuse.. well you don't know the ins and outs of they're relationship, maybe he was abusive or drunk or the just fought all the time.. it's never as cut and dried as the media will make it out to be.
i do think that the fathers name on the birthcert should guarantee parental rights and he should be able to have it put there even against the mothers wishes if it's proved by paternity test he is the father..
sorry for the essay, very emotive subject in my house;)

ToniTuddle

cbyrd wrote: »

while i agree that the rights of unmarried fathers in this country are ignored to the point of be discrimatory, in this particular case the dad sounds like a bit of a plonker.. i'm not being funny but if the kids lived in England for ages and he hadn't applied for guardianship then, to be honest he didn't have a leg to stand on.

From what I can read he doesn't sound like a "plonker".
Alot of men don't know that they have to apply for guardianship. He could have been trying to solve this situation over the phone with his ex to try and keep things civil.

being drunk in charge of small kids is worrying.. what if something happened to one of them.. a responsible parent would get a babysitter. and why did it take him 5 months to begin proceedings??

A responsible parent would get a babysitter....then come home drunk and send the babysitter home in taxi. So what difference does the babysitter make!
Plus they is no proof he was drunk. Just her word on it.
Also maybe he couldn't afford a solicitor and needed to wait for legal aid.

Klingon Hamlet

There's not enough information out there for fathers. Everything is skewed towards one gender when it should be fair and easily accessible to both. I've dealt with several so-called family-orientated organisations and they immediately have treated me as if I were guilty of a crime, just because I'm male.

This father---no matter how good or bad a dad he was---was unfairly treated. His counsel shouldve lodged an application to the district court for guardianship. There is no way that he should have lost all rights to access, it's heartbreaking to read.

rolly1

cbyrd wrote: »

while i agree that the rights of unmarried fathers in this country are ignored to the point of be discrimatory, in this particular case the dad sounds like a bit of a plonker.. i'm not being funny but if the kids lived in England for ages and he hadn't applied for guardianship then, to be honest he didn't have a leg to stand on.

I would like to draw your attention to the words of Gandhi speaking in Johannesburg, 1906 protesting against the Transvaal Government's introduction of a law compelling registration of the colony's Indian population:

"We have asked you to gather here to proclaim our right to be treated as equal citizens of the British Empire. We do not seek conflict, we know the strength of the forces arrayed against us, we know that because of them we can only use peaceful means, but we are determined that justice will be done!

The symbol of our status is embodied in this pass we must carry at all times which no european has to have. The first step towards changing our status is to eliminate this difference between us."

Now, over 100 years later, lets start swopping a few words around for the unmarried fathers situation in the Ireland of 2010:

For "British Empire" replace with "Ireland", for "pass" read "guardianship document" and for "european" read "unmarried mother".

Ring any bells?

You see the problem is so fundamental we can't even see it.

ani_mal

You might find it strange, but many fathers do not know their rights. They do not have idea that they need guardianship as well. I was surprised discovering that in court while talking to mums, dads..

what's more, some of solicitors do not even tell their clients about it.
sounds unbelievable but I heard about it as well. Some fathers got this information from me when having conversation.
One was even told by social services (unmarried couple) that he needs to be in relationship with mother of his children for 10 years to get guardianship.!!!

cbyrd

i find i have to reply due to a lot of quote battering i have recieved...

I was solely commenting on this particular case and as i said in my original post i have both a brother and a brother in law in similar situations.

rolly1 i also said that the father should have his rights acknowledged with his name on the birthcert and there should be no further need for proving who he is

I was commenting that in this particular case the father did nothing until the kids were out of the country.

anyone who is doing their utmost to keep their children will arm themselves with information.

there are also fathers out there that give the good ones a bad name because they all get lumped together

and a responsible parent will get a babysitter usually one will stay sober or get the kids minded overnight. this is what i do. i'm only drawing from my own experience. i know there is no law against being drunk in charge of a minor in this country but morally i think if you cannot help a child in distress or danger because you're drunk then you shouldn't be in charge of that child.
just so i won't be quoted and sound like i'm being anti un-married father again i think the law is wrong and should be changed.
rant over

wotabotya?

As was mention before there is only her word to suggest he was drunk! & from what I have heard about this case there was a wedding planned & they were going to be getting married & then she disappear's with the children! I think in this situation the man in this particular case can be excused for not thinking he needed to rush out & take the women he is just about to married to court to get rights to his children!:rolleyes:

rolly1

cbyrd wrote: »

I was commenting that in this particular case the father did nothing until the kids were out of the country.

anyone who is doing their utmost to keep their children will arm themselves with information.

Ammm maybe because of this:

You might find it strange, but many fathers do not know their rights. They do not have idea that they need guardianship as well. I was surprised discovering that in court while talking to mums, dads..

what's more, some of solicitors do not even tell their clients about it.
sounds unbelievable but I heard about it as well. Some fathers got this information from me when having conversation.
One was even told by social services (unmarried couple) that he needs to be in relationship with mother of his children for 10 years to get guardianship.!!!

Which is of course related to this (1916 Proclamation):

The Irish Republic is entitled to, and hereby claims, the allegiance of every Irishman and Irishwoman. The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and all of its parts, cherishing all of the children of the nation equally and oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past.

i.e. when you are brought up in a supposed democracy, founded on the principles of justice and equality for all, ya kinda get a hell-of-a-shock when you find out you are actually legally discriminated against as opposed to the unmarried mother..as in she doesn't need a piece of paper, whereas YOU do.

So, no, I don't accept the "what a plonker, he shoulda got the form" argument. All it actually does is reinforce the disgusting legal apartheid in place, which has left these 3 kids without their father and their homeland.

ellee

O please, regardless of whether he was drunk or not, where has he been the last 10y? This woman has clearly been minding these children herself, alone. The eldest is NINE! And now he wants guardianship? She has to do what is best for herself and the children. Disinterested dads come last in the list of most people's priorities.

It's nothing to do with bits of paper and a lot to do with responsibility and being actively involved in the children's lives. So "plonker" doesn't begin to describe it.

Klingon Hamlet

ellee wrote: »

O please, regardless of whether he was drunk or not, where has he been the last 10y? This woman has clearly been minding these children herself, alone. The eldest is NINE! And now he wants guardianship? She has to do what is best for herself and the children. Disinterested dads come last in the list of most people's priorities.

It's nothing to do with bits of paper and a lot to do with responsibility and being actively involved in the children's lives. So "plonker" doesn't begin to describe it.

Where does it say he was absent for 10 years?

Who says she was minding them alone?

Now he wants guardianship because now he realises it's the only way the state will recognise his fatherhood. For all we know, the mother only found it out after talking to her solicitors first. The information is out there if you know to look for it. Most people don't, assuming the state treat married and unmarried parents equally.

We don't have a day-to-day view on these people's raising of their children. All we have are the legal facts. This article brings up one important point: married fathers are legally entitled to help decide their children's home and future, whereas unmarried fathers must first seek the mother's agreement, and if in the case she doesn't, must seek the government's.

I would disagree with your description of him as "disintrested". Seeking your children's return under the Hague Convention can be a lengthy and difficult process, surely proof that the father is at the very least, interested.

The crux of this and many similar situations is: should dads continue to request responsibility, or should they be endowed with rights and responsiblities without gender prejudice or groundless assumption?

20goto10

Do people seriously have sympathy for this guy? What sort of a tool gets himself into this kind of mess in the first place.

Klingon Hamlet

20goto10 wrote: »

Do people seriously have sympathy for this guy? What sort of a tool gets himself into this kind of mess in the first place.

It's happened upto 136 times in a year

axer

20goto10 wrote: »

Do people seriously have sympathy for this guy? What sort of a tool gets himself into this kind of mess in the first place.

You mean because he did not seek guardianship? Did the mother have to seek guardianship?

cbyrd

the relationship was described as unstable and unhappy

the law in this country favours married couples over un-married

yes its out moded and not in tune with todays society.

its very easy to prove who is the mother of a child as shes the one who's pregnant (don't jump on my head just stating the obvious) but its not as easy to prove who the father is.

That's why couples got married when they found out they were pregnant in the 40's 50's 60's 70's until they stopped and just decided to live together. being sent to the magdelene was done away with.

i'm not saying this is right and the law does need to be updated but how many men run from their kids and never look back, leaving all the responsibility with the mother?? no-one shouts from the rooftops for these women or kids.

no law will solve all the problems, but a person automatically deserves the right to be a parent, if they are the parent.

but then this will open up a huge debate about whether a sperm donor deserves the same rights. whats the difference between a one night stand that results in pregnancy, what happens if that father walks away and comes back after 6 years looking for all his rights??

its a very emotive subject and not every one of these fathers make a positive influence in the childs life. and before i get my head jumped on again yes there are some really crap mothers out there too and some amazing dads.

all i'm pointing out is the judge in this case saw fit not to grant guardianship.. all i'm asking is why??

axer

cbyrd wrote: »

its very easy to prove who is the mother of a child as shes the one who's pregnant (don't jump on my head just stating the obvious) but its not as easy to prove who the father is.

It is very easy to prove who the father is and the father should have the same rights as the mother with regards guardianship. If paternity is in question then it can be solved easily with a test.

cbyrd wrote: »

i'm not saying this is right and the law does need to be updated but how many men run from their kids and never look back, leaving all the responsibility with the mother?? no-one shouts from the rooftops for these women or kids.

They get treated much better than men with regards rights. There should be equality in these situations.

cbyrd wrote: »

no law will solve all the problems, but a person automatically deserves the right to be a parent, if they are the parent.

but then this will open up a huge debate about whether a sperm donor deserves the same rights. whats the difference between a one night stand that results in pregnancy, what happens if that father walks away and comes back after 6 years looking for all his rights??

Those factors should be taken into account on a case by case basis but the problem at the moment is that both parents do not start with an equal footing.

cbyrd wrote: »

its a very emotive subject and not every one of these fathers make a positive influence in the childs life. and before i get my head jumped on again yes there are some really crap mothers out there too and some amazing dads.

Then what is the point of bringing that up?

cbyrd wrote: »

all i'm pointing out is the judge in this case saw fit not to grant guardianship.. all i'm asking is why??

"he found that the father did not have any 'rights of custody' of the children under the Hague Convention as he never applied to a court to be made a guardian of the children, for reasons which were not explained."

i.e. legal reasons why.