FATHERS RIGHTS IN IRELAND

Unmarried fathers essentially have no rights regarding their children, a situation the MHRI organisation seeks to rectify, and we are examining the new Children and Family Relationships Bill 2014 which appears to take positive steps in the right direction.

The following information was sourced from the Treoir website:

What are my legal responsibilities in respect of my child?

All fathers have a legal responsibility to financially maintain their child.  This applies whether or not the father is a legal guardian or whether or not his name is on his child's birth cert.

What are legal rights in respect of children?

Guardianship is the collection of rights and duties which a parent has in respect of her/his child. The guardian has a duty to maintain and properly care for the child and has the right to make decisions in the major areas of a child's life e.g. choice of religion, of school, adoption, consenting to medical treatment, passports and decisions about leaving the country, etc.

Access is the right of a child and a parent who do not live together to spend time together.

Custody is having the responsibility for the day-to-day care of a child.

What are my legal rights in respect of my child?

None. Unmarried fathers do not have any automatic legal rights in respect of their children.

What are my legal rights in respect of my child if my name is on the birth cert?

None. In Ireland having your name on the birth certificate does not in itself give you any legal rights in respect of your child. You are, however, presumed to be the child's father when your name is on the birth cert.

 
How can I get legal rights in respect of my child?

1. If the mother of your child agrees, you can get guardianship rights of your child by both parents signing a statutory declaration for joint guardianship (S.I. No 5 of 1998) in the presence of a peace commissioner, commissioner for oaths or notary public.

This form contains declarations that

• the parents have not married each other
• the parents are the parents of the child
• they agree to the appointment of the father as a guaradian and
• they have entered into arrangements regarding the custody of (and access to) the child. These arrangements do not need to be specified or written down. However, it is advisable to do so.

A copy of S.I. No 5 of 1998 is available from the National Information Service of Treoir.

When this form is signed and witnessed you need to keep it in a safe place as it is the only evidence that the father is a guardian. There is no central register for Statutory Declaration Forms.

A father's guardianship rights can only be removed by the court.

Parents can make informal arrangements regarding access, custody and maintenance but if these arrangements break down they cannot be legally enforced. However, any written agreement between parents can be made a rule of court.

2. If your child's mother does not agree to you getting rights you can apply for them through the courts:

You can apply to the court for joint guardianship, access and joint/full custody.  The court can also order you to pay maintenance in respect of your child. Court orders for access, custody, maintenance and/or guardianship can only be changed through the court.

What is a Rule of Court?

Where parents enter into an agreement in writing for maintenance, custody and/or access (including written agreements made during mediation), either parent may make an application to court for an order to make the agreement a rule of court. The court may make an order if it is satisfied that the agreement is fair and reasonable and adequately protects the interests of the child. The agreement then has the same standing as a court order.  A written agreement that is not made a rule of court is NOT legally binding.

 
What are my legal rights in respect of my child if I marry the mother of my child?

Provided that the mother was not legally married to someone else 10 months before the birth of the child, you automatically become a joint guardian of your child with the mother. You do not need to adopt your own child as it is from the marriage that your joint guardianship rights flow.
 
What are my rights in respect of my child if the mother of my child marries another man?

The rights you already have in respect of your child do not change on the marriage of the mother:

• If you are already a joint guardian you remain so
• If you do not have any guardianship or access rights in respect of your child you can still apply for them, unless the child has been adopted by the mother and her husband
• You still have a duty to maintain your child unless your child is adopted.  There is no legal relationship established between your child and her/his step-parent.

 
What if my child is adopted?

If the mother and her husband (or anyone else) apply to adopt your child the law requires that, if possible, you are consulted before any adoption order is made in respect of your child, even if you are not a joint guardian of your child.  If it is not possible to contact you the Adoption Authority will require an order from the High Court before an adoption can go ahead.

• If you have joint guardianship rights in respect of your child then your consent is required before an adoption order can be made
• If your child is adopted your child becomes a child of the adoptive family as if s/he had been born into that family. This legally excludes you permanently from your child's life. You no longer have any possibility of applying for any rights in respect of your child. It is possible to agree informal access arrangements between parents but these are not legally enforceable.

Seperated Fathers

There does not seem to be any equivalent attention being paid to the difficulties facing seperated fathers, however.

Imagine for a moment a man alone in his bedsit, his head in his hands, in poverty, childless, helpless, and in despair. This is a scene from A Far Cry, a play about a hidden societal problem that gave birth to Forever Fathers in County Donegal in 2001.

Forever Fathers is a support group for divorced, separated, and unmarried (non-resident) fathers founded by two community workers who are separated fathers. They found that, in contrast to women in the same situation, there were minimal supports available specifically for men, and that separation often results in a father not seeing his children. Homelessness, financial poverty, social alienation and isolation, depression, alcoholism, drug-taking, domestic abuse or suicide, are all part of the picture.

Non-resident fathers may find that the mother sometimes acts as a “gatekeeper,” preventing them from exercising their legally-entitled guardianship, joint custody, or access rights. They experience systemic discrimination, and endure negative media perceptions of “deadbeat dads” who, unlike them, don’t wish to see their child or pay maintenance. Thankfully, these perceptions are mostly untrue: many fathers have a reasonable relationship with their ex-partner and play a full part in their children’s lives. Some don’t have such a relationship, but still see their children regularly.

However, many fathers are not allowed to see their children. The mother may utilise her discriminatory constitutional and systemic advantage against him. Courts rarely penalise a woman for preventing court-granted access, for making unfounded allegations (sometimes of child abuse), or for assault and abuse. On the other hand, courts do imprison fathers who cannot afford to pay child maintenance, or who break access. Many judges in family courts have minimal family law training, making their rulings uninformed and non-standardised. It is common that in camera family courts operate illegally as they are attended by Gardaí, solicitors, and others who have no legal right to be there. Moreover, their confidentiality insulates judges’ decisions from public scrutiny.

The mostly male Garda are more sympathetic to the mother, and the mainly female social services often display an anti-male attitude. Health, community, voluntary and legal services are friendly to women in this situation, but not to men.

In the worst scenario, the unmarried father, even if named on the child’s birth certificate, has only two legal rights - to pay maintenance, and to be informed if his child is given up for adoption - which he can’t stop! Some mothers have been known to give their child up for adoption rather than have a loving stable father and his family bring up his own flesh and blood. To be a loving father he has to endure prolonged and costly battles in biased courts at his expense, while the mother can use legal aid, or prevent him from seeing his child. Paradoxically, the child’s grand-parents have an entitlement of up to twenty-six hours access per month, while the father has none at all!

The UN Convention on the Rights of the Child (Article 9.3), which Ireland has signed, states, “Parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” On numerous occasions in the courts, Ireland has violated this provision by not ensuring a child’s and a father’s right to be together.

One of many heartbreaking stories told at meetings of Forever Fathers was by a body-builder who broke down in tears because he had not seen his daughter for months. He had left his partner, who had violently attacked him throughout their relationship (he was too ashamed to report this and “man” enough not to defend himself!) The mother relocated to Dublin with the child to live with her relatives (some of whom were heroin users), the father alleging that there were needles and blood in the house, with the risk of infection to the child. He reported this to Social Services, who, on investigation, found nothing wrong! After driving 240 km. to Dublin, Christmas presents in hand, his ex told him he was not seeing his child, and slammed the door in his face, even though he had a court order granting access. On contacting the Gardaí in Dublin, he was told to go back to court!

No political party or major figure in Irish life is willing to tackle these issues. Some politicians are themselves separated, but their position and wealth has sheltered them from homelessness or the precarious legal and financial difficulties that most non-resident fathers endure. In fact, the most notable Irish person involved in fathers’ rights equality is Sir Bob Geldof who wages his battles in England, where the law is more favourable to fathers. Many fathers like Bob have sacrificed much of their lives through their fatherly love and commitment, regularly travelling hundreds of miles to spend quality time with their child, or by fighting expensive court battles for them. Moreover, these access issues negatively affect women, too, such as grandmothers, aunts, and female cousins, or the daughter herself.

Many sociological and psychological studies describe the importance of a positive male role model in a child’s life, and the psychological damage caused by poisoning a child against a parent (Parental Alienation Syndrome), which often occurs and is a recognised form of emotional abuse against both the child and the father.