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Topic 18- The Family, Children and Education
Guardianship and Adoption…
Topic 18- The Family, Children and Education
Guardianship and Adoption
Introduction
Constitutional Protection is limited to marital family
- Unmarried mothers enjoy strong protection under A40.3
- Unmarried fathers do not but their position is improved by proximity of relationship to the child (i.e. child's rights can benefit father)
De Facto Family
- non-marital family does not enjoy protection under Constitution
Unmarried mother
- Even though mother and child not recognised as family within meaning of A41, the mother does enjoy personal rights under Article 40.3
Unmarried father
- The unmarried father is in much weaker position
- He does not have rights under either A41 or A40.3
- He does now enjoy certain statutory rights in relation to adoption and guardianship
- This does not put him in the same position as married father or unmarried mother
Favourable development- the father's position may be improved by virtue of his relationship with the child
- aspect of child's rights that it has access to its father
Unmarried Father
State (Nicolaou) v An Bord Uchtala
Facts: Constitutional challenge to Adoption Act 1952
- Nicolaou was natural father to child born outside of marriage
- Contrary to his wishes mother placed child for adoption
- When he learned of this he sought to quash he adoption order
Issue: argued act was unconstitutional as it failed to provide he should have been consulted
- Argued breached A40.1 (equality) in terms of the difference in threatment between an unmiarried mother and unmarried father
- Court rejected this argument
- Argued it breached A40.3 (personal rights)
- Held no such personal right whereby unmarried father has custody or society of this child
- Claimed breached A41 insofar as Act failed to proteect the 'inalienable and imprescriptible rights of the family
- Rejected- the family in A41 is limited to the family based on marriage
- For same reason unmarried mother cannot rely on constitutional protection of he family
- However unmarried mother does have a natural right to custody and care of her child under A40.3
JK v VW
Facts: Unmarried parents split up and mother gave child for adoption
- Child was planned and parties engaged at ime
Issue: Non-marital father applied for guardianship and wanted to raise child
Held: Circui Court- graned him guardianship
HC- stated a case to SC
SC HELD
- Act merely gave father the right to apply for guardianship
- It did not equate his position to that of the married father
- The welfare of the child was the paramount consideration (Under Guardianship of Infants Act)
: In assessing what was in child's best interest, the blood link between father and child was a factor to be taken into account
: The extent of a father's rights would vary depending on circumstances of case
Dissent- McCarthy J: where the child was the fruit of a loving relationship between a man and a woman who wished to have a child, then the father was entitled to guardianship under the Act unless he was not a fit person or there were circumstances involving the welfare of the child which required he should not be appointedIN HC HELD: Child should remain with adoptive parents
3 factors relied on:
- The dangers in breaking bonds of attachmen to adopted parents
- The possibility of the birth mother applying for custody if the father succeeded
- The fact the child would become a member of a constitutional family if the adoptive process was completed
= Child's welfare better with adopted parents
WO'R v EH (Guardianship)
Facts: Mother and father had two children together
- Split up and mother and her partner sought to adopt the children
Issue: Father sought guardianship of the children in order to prevent their adoption
- Circuit Court stated a case to SC as to relevant law
HELD: SC
- No right to guardianship- merely the right to apply pursuant to Guardianship of Infants Act
- Appropriate to consider the pending adoption as a factor in deciding whether or not to grant guardianship
- As well as father's intention to resist that
Held; Father has no rights under A40.3
Extent of rights of an unmarried father accrue not from his status as a father but from his relationship to the child
- Blood link is of small weight
- Where child is born into a stable and established relationship and is nurtured at the commencement of is life by a father in a mother in a situation bearing nearly all the characteristics of constitutionally protected family- the rights of the natural father would be extensive
- Note: Guardianship act recognizing sliding scale between e.g. rapist father and a caring father
Barrington J Dissent- a father who fulfills his duty to his child has rights under A40.3Court also confirmed de facto family not recognised in law
S v Adoption Board
Adoption Act 1998 provided the father of a child is entitled to be heard in relation to adoption proceedingsFacts: Mother and new partner had child adopted when aged 5/6
- Father not consulted
Held; Quashed adoption order
- failure to ascertain view of father breach
- Father did not have rights re family rights but this breached
- his right to fair procedures
- Child's rights under A40.3
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Married Family
Re the Adoption Bill 1987
Bill provided that marital child could be adopted in extreme circumstances where parents failed comprehensively in their duties towards the child and where such failure is likely to last until at least child's 18th birthday
- Argued amouned to violation of 'inalienable' rights of family
Held: State could vindicate rights of family members by altering its membership if necessary
Note: A42A now expressly provides for this
UV v VU
Facts: Spanish mother and Irish father had obtained judicial separation
- Shared custody of their two children
- Mother wanted to relocate to Spain (father objected)
Held; Child's welfare primary concner
- On facts: children close to both parents and removing one would turn family into a de facto single parent family
- Children had right of access to each parent
- if father has rights (guardianship) then child's welfare primary consideration
Surrogacy
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R(M) v An t-Ard-Chlaraitheoir
Facts: Applicant unable to conceive a child and her sister agreed to act as surrogate
- Respondent refused to register genetic mother as mother
on basis the registration related o the 'birth' mother only
HC Held: Agreed with applicant, held 'mother' referred to genetic mother
- Blood link strong to rebut presumption of birth mother being mother
SC:
- The birth certificate recorded the mother at the time which was invariably the birth mother
- Clark dissented: noted law to date did no make any distinction between genetic and birth mother- accordingly mother capable of applying to each
- Court remarked that surrogacy was a complex issue and was properly one for the Oireachtas
: Absence of legislation had created a lacuna and it was the responsibility of the Oireachas to fill t in
: Thus implying Oireachts free to address the problem in such a way that could recognise the genetic mother as the mother
G v Deparment of Social Protection
Facsts: Mother for medical reasons, used a surrogate to give birth to child
- Not entitled to maternity benefit or adoptive benefit
Issue; argued discrimination under Equal Status Act
Held: Equality has not jurisdiction to look past Social Welfare Act
- Expressed concern over lack of regulation
McD v L
Facts: Sperm donor donated sperm to lesbian couple
- Agreed that he would be akin to 'favourite uncle'
- Parents became concerned he was acting like a father: Planned to move to Australia for a year
Issue: 'Father' applied to prevent child going as well as access and guardianship
HC: Refused guardianship, custody or access
- Lesbian couple and child were de facto family under ECHR
- Blood link not that relevant for sperm donor
SC: HELD
- No such thing as de facto family
- Natural father has no right to guardianship, only right to apply
- Primary concern was welfare of the child under statute
- HC- erred in not considering' father's desire in relation to access
- Weight of blood link would vary in circumstances
- Remitted case to HC in relation to access: noted the natural curiosity abou patronage and felt HC had not had sufficient regard to the blood link
- Guardianship should not be ordered, but access in best interests of child