It is fair to say that Ireland as a state has progressed quite well in recent years in terms of human rights and equality, but it is also fair to say that there is still room for improvement.
It is arguable that some of this improvement could be implemented with regard to the rights of the unmarried father under Irish law. Some may be of the opinion that unmarried fathers are already adequately protected, especially in light of the Children and Family Relationships Act 2015, but there are many who believe that there is still need for change in this department.
As of 2016, there were 862,721 families in Ireland with children; 75,587 of these were cohabiting couples with children and 189,112 were one-parent families. Out of the 189,112 one-parent families, only 29,705 were one-parent families in which the father was the primary care giver. Why is the number of fathers caring for children solely so low in comparison to the female counterpart? It could be assumed that it has something to do with the difference in rights mothers and fathers who are unmarried have. For example; a natural mother, whether married or not, is regarded as the automatic guardian of her child, whereas a natural father is not automatically regarded as a guardian of his child where he is not married.
An unmarried father has no automatic legal rights to his child, however in some circumstances he may acquire automatic guardianship rights as will be outlined below.
A common misconception is that once the father’s name is on the birth certificate, the father automatically acquires some sort of rights in respect of his child. This is not the case, in Ireland having your name on your child’s birth certificate is merely proof that you are the father but does not in itself give rise to any rights.
All fathers, irrespective of marital status, do however have a legal responsibility to maintain their child until he or she reaches the age of 18, this means that they are required under law to pay maintenance and failure to do so will have serious repercussions.
Unmarried father’s rights have however been altered in recent years with the enactment of the Children and Family Relationships Act 2015 which provides that an unmarried father is automatically recognised as his child’s guardian if he can prove that he has cohabited with the mother of the child for at least 12 consecutive months, 3 of which must be after the birth of the child. This is clearly a step in the right direction with regard to the rights of the father, but what many may not realise is that the act also provides that a person who is married to or in a civil partnership with the parent of the child or who has cohabited with the parent for 3 years or over can be appointed as a guardian. A person who has been jointly responsible for the everyday care of a child for two years or more may also be appointed as a guardian. This could in turn lead to a non-parent being granted guardianship rights and a biological parent being denied the same. This provision obviously does not just relate to unmarried fathers but with the majority of one parent families only involving a mother it is arguable that it may have the most drastic impact on fathers.
As mentioned previously, an unmarried father can in some circumstances acquire guardianship rights over his child. The first way is by agreement with the mother. A statutory declaration for joint guardianship may be signed by both parents in the presence of a peace commissioner or commissioner for oaths. This document is the only proof that a father is a guardian in such cases. The second method by which unmarried fathers can acquire guardianship rights is by satisfying the 12 month cohabitation period as outlined in the previous paragraph. Also if the parents of a child get married, the father will automatically become a joint guardian by virtue of the marriage. The final method by which these rights may be obtained, and the least desirable of all, is through an application to the District Court which will end with a decision on whether or not the father should be recognized as a legal guardian.
A worry for many fathers in this position is what will happen if the mother of his child marries someone else. Should this occur and the mother’s new spouse applies for and is granted adoption over the child, the biological father is permanently excluded from acquiring any guardianship rights over his own child and will have no decision making power with regard to his child. Should the mother and her spouse apply to adopt the child in question, under current law the natural father should be consulted prior to such an application. What benefit this consultation might have for a father is unclear, it would not seem that the father’s opposition to such an adoption application would be sufficient grounds for disallowing it.
More information for unmarried fathers can be found online at both Treoir.ie and Rollercoaster.ie.
In light of the above, many might believe that the unmarried father is not as well protected as the unmarried mother and that there is need for reform in this regard. With Ireland and our global society ever-changing, is it possible that this reform is not that far away?