PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 7 April 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 16969/90) against Ireland lodged with the Commission under Article 25 (art. 25) on 1 May 1990 by an Irish citizen, Mr Joseph Keegan. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Ireland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 8 and/or 14 (art. 6, art. 8, art. 14) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mr B. Walsh, the elected judge of Irish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mr S.K. Martens, Mrs E. Palm, Mr R. Pekkanen, Mr A.N. Loizou, Mr J.M. Morenilla and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). On 25 May 1993 Mr Walsh withdrew from the Chamber pursuant to Rule 24 para. 2. By letter of 30 June 1993 the Agent of the Government of Ireland (“the Government“) notified the Registrar of the appointment of the Hon. Mr Justice John Blayney, a judge of the Supreme Court of Ireland, as an ad hoc judge (Article 43 of the Convention and Rule 23) (art. 43).

As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the procedure (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received on 23 September 1993 the applicant’s memorial and, on 14 October 1993, the Government’s. He was subsequently informed by the Secretary to the Commission that the Delegate would submit his observations at the hearing.

In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 November 1993. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mrs E. Kilcullen, Assistant Legal Adviser, Department of Foreign Affairs, Agent, Mr D. Gleeson, Senior Counsel, Mr M. Hanna, Counsel, Mr D. McFadden, Mr B. Carey, Advisers;

for the Commission Sir Basil Hall, Delegate;

for the applicant Ms D. Browne, Counsel, Mr B. Walsh, Solicitor, Ms C. Walsh, Adviser. The Court heard addresses by Sir Basil Hall, Ms Browne and Mr Gleeson as well as replies to questions put by several of its members.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

The applicant met his girlfriend Miss V. (“V.“) in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married. On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V.’s parents’ home but was not permitted to see either V. or the child.

During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988.

A. The proceedings before the Circuit Court

The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child’s mother and the child’s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below).

On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody.

B. The proceedings before the High Court

Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father’s rights be denied. Mr Justice Barron of the High Court stated: “I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is: (1) whether the natural father is a fit person to be appointed guardian, and, if so: (2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed. In the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ... In my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing.“

C. The proceedings before the Supreme Court

After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows: “(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed? (2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?“

Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court’s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia: “... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married. The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case. The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ...“ He concluded that: “... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better“. The matter was then referred back to the High Court for the case to be decided in light of this interpretation.

D. The subsequent proceedings before the High Court

The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming “trust“ relationships.

In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond. He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view “to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law“. Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows: “The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated. In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused.“

An adoption order was subsequently made in respect of the child.