The Labour Party has called for an updating of the guardianship law after the High Court yesterday rejected a challenge by a man to the legality of the removal by his former partner of their three children to England to live.
The judgment of Mr Justice John MacMenamin highlights the lack of laws here dealing with the rights of unmarried fathers and the absence of recognition in Irish law of a “de facto family” not based on marriage.
Labour spokeswoman on equality Kathleen Lynch today said the principles set out by Mr Justice MacMenamin "now make it essential that the Oireachtas updates the law in regard to guardianship".
"There have been huge changes in Irish society and in social attitudes since the principal piece of legislation governing guardianship was passed in 1964. There has been a huge increase, in particular, in the number of children born outside of marriage since then.
"The judgement shows that the proposals contained in the Law Reform Commission consultation paper are inadequate to deal with the problem. Indeed the Law Reform Commission consultation paper makes no reference to the problem of child abduction in the case of unmarried relationships," she said.
"Children have a fundamental right in international law to the society of each of their parents, but the outdated law on guardianship fails to vindicate that right. The law must be modernised to achieve this," Ms Lynch said.
The taking of the children to England by the woman, with whom he had a 10-year relationship, was described by the court as “reprehensible”.
The British courts will now determine an application by the father for guardianship, custody of and access to his three children aged two, seven and nine.
The mother’s removal of the children in July last year just weeks after terminating her relationship with the father did not breach his rights under Irish law and was not wrongful within the terms of the Hague Convention on Child Abduction and/or the relevant EC regulation (the Brussels Regulation), the judge ruled yesterday.
The law protected those who held custody rights and, because the father had not exercised his right to apply to the District Court here for guardianship, custody or relocation of the children during his relationship with the mother, he had no right under Irish law to custody or access, the judge said.
An unmarried father had no automatic rights of guardianship but was only entitled to apply to court for guardianship, custody and access.