Publications, travel, and life have pulled me away from Cross Borders for the past month, but the hits keep coming. With up to 100 hits a day, I see that I need to get back in the blogger's seat.
In a case I mentioned in a paper that I recently submitted for publication in law journals, the Irish Supreme Court referred a question regarding rights of custody to the European Court of Justice ("CJ").
The case, McB, involved a father who had filed for paternity when the mother took their child from Ireland to England. The Irish court doubted that this created rights of custody under BIIbis or the Hague Abduction Convention. Rather, the Supreme Court thought that the father needed a final court order of paternity--he could not rely on an inchoate right by applying for such rights.
However, as per Art. 267 of the Treaty on the Functioning of the European Union, the Irish Supreme Court sought a preliminary ruling from the CJ because the issue dealt with EU law.
Without directly answering whether the father's application for paternity gave rights of custody, the CJ held that BIIbis:
must be interpreted as not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful.
In other words, the CJ gave Irish courts the thumbs-up to rule that the father's mere application did not create rights of custody.
That ruling was clear enough. However, the case is a fascinating intersection of fundamental European rights and family law in the CJ.
The father's argument relied heavily on the EU Charter of Fundamental Rights (and inherently the European Convention on Human Rights), which has enjoyed an elevated status in EU law since the Treaty of Lisbon went into effect (See Treaty on European Union, Art. 6). The CJ relied heavily on a European Court of Human Rights decision in which the ECHR held that laws providing mothers automatic rights of custody while requiring unmarried fathers to apply for paternity did not violate fathers' rights to family life (ECHR Art. 8). Thus, the Irish courts were free to rule as they wished.
This kind of ruling will certainly irk fathers' rights groups. After all, giving unmarried mothers automatic parental rights while requiring unmarried fathers to apply isn't exactly equal rights. More subtly, these laws differentiate between unmarried fathers (who must apply) and married fathers (who get automatic parental rights). This kind of discrimination might not last forever in the ECHR.
For now, all unmarried fathers in Ireland wishing to have legal parental rights must file for paternity.