It has taken a long time but the start of the year saw a significant improvement in the rights of co-habiting fathers.
The changes – part of the Children and Family Relationships Act 2015 – mean that if the parents have lived together for a year, the father automatically becomes a joint legal guardian.
Unfortunately, time living together before January 18th this year doesn’t count. Unfortunately also, it doesn’t help unmarried fathers who have never lived with the other parent.
Nonetheless Treoir, which provides an information service for unmarried parents, described the move as “a significant and impactful development”.
Up to mid-January, where a child was born outside marriage, only the mother was automatically the sole guardian. The father could become a guardian by agreement with the mother and by making a statutory declaration with her consent. Alternatively, he could ask a court to make him a guardian.
The latter was not always plain sailing. If the relationship with the mother was fraught, getting a court order was unlikely to improve matters.
Now this issue doesn’t arise so long as they lived together for a year and so long at least three months of that year occurred between the birth of the child and his or her 18th birthday. So if they lived together but split up before the birth of the child, it wouldn’t count.
Meaning of guardianship
Guardianship means each parent has a duty to maintain and properly care for the child. Each also, as Treoir puts it, “has the right to make decisions in major areas of the child’s life such as religion, school, adoption, consent to medical treatment, passports and decisions about taking the child out of the country, where the child lives and other matters affecting the welfare of the child”.
In a move which recognises the variety of ways in which the modern family is constructed, people who are not parents can ask the courts to appoint them as guardians. These could include the spouse or civil partner of the birth parent or a person caring for a child who has nobody who is willing to take on the duties of guardianship.
I was glad to see that the changes make it easier for grandparents and other relatives to have access to a child following relationship breakdown. Losing such access where parents split up is a source of pain to many grandparents and to the children and this is gradually being recognised by the law.
The flaw in these changes, according to Treoir, is that they do nothing to give automatic guardianship rights to “unmarried parents who are in a committed relationship but are not cohabitating due to personal circumstances such as employment or financial constraints”.
Here, guardianship would have to be sought by agreement with the mother or via a court order. This, according to Treoir chief executive Greg Straton, may be in conflict with the European Convention on Human Rights. Article 8 of the Convention protects the right to a family life.
As Ursula Kilkelly points out in her Human Rights Handbook on Article 8 of the Convention, the European Court of Human Rights ruled in a 1996 case that family life includes the relationship between a parent and child even if they don't live together.
In that case, it found that the relationship between a man and his son, born outside marriage and with whom he had had little contact, amounted to family life.
Treoir also called for a Central Guardianship Register to which, for instance, the Child and Family Agency could refer when trying to work out who a child’s legal guardian may be. If you have read this far, you will appreciate that finding out this information could be extremely difficult in the absence of a register.
Behind all these legal issues lie human stories and emotions so strong they can tear lives apart. All the more reason for pressing ahead with protecting the guardianship rights of fathers who have never lived with the mothers of their children – a more complex area which, for that very reason, needs attention.
Padraig O'Morain is accredited by the Irish Association for Counselling and Psychotherapy. His latest book is Mindfulness for Worriers. His daily mindfulness reminder is free by email.
pomorain@yahoo.com Twitter: @PadraigOMorain