FIFTH SECTION
Application no. 42734/09
E.
against Ireland
lodged on 29 July 2009
STATEMENT OF FACTS
THE FACTS
The applicant is an Irish national who was born in 1977 and lives in Dublin. She is represented before the Court by Ms C. Matthews, a solicitor practising in Dublin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the mother of P. She and the natural father (“the father”) were in a relationship for 4 years before separating. In July 2004 she took proceedings in the Circuit Court claiming from the father: a “lump sum for accommodation” under section 11(1) of the Guardianship of Infants Act 1964 (“GIA”) for a house in the joint names of the applicant and P; “weekly maintenance” for P under the Family Law (Maintenance of Spouses and Children) Act 1976 (“1976 Act”); and a “lump sum maintenance payment” under section 42 of the Family Law Act 1995 (“1995 Act”) for P’s benefit.
On 27 July 2004 the Circuit Court ordered the parties to disclose documents about their financial resources. It would appear that the Circuit Court heard the applicant’s motions for further disclosure by the father four times between October 2004 and January 2005 and that a relevant court order was made in March 2005. In June 2005 the Circuit Court awarded interim maintenance, it being an estimated sum given the lack of discovery. In February 2006 the High Court reduced this interim sum as it was considered speculative in the absence of full discovery. The applicant states that between February and June 2006 further disclosure orders were made with which the father did not comply. In June 2006 the hearing date was fixed for January 2007. On the latter date, the court allowed the lawyers of the father and of his former wife to come off record, those lawyers citing a lack of instructions/cooperation from their clients. The hearing was therefore adjourned.
The case was heard by the Circuit Court in July and October 2007 (8 days). On 26 November 2007 the Circuit Court ordered: a lump sum for accommodation (EUR 500,000) under section 11(1) of the GIA for the purchase of a home for the mother and P as well as periodic maintenance payments (EUR 1200/month) for P under the 1976 Act. It made no order as regards the claim for a lump sum maintenance payment.
The father appealed in November 2007. In July, October and November 2008 oral submissions were heard by the High Court which court delivered its judgment on 5 February 2009.
In the first place, the High Court vacated the order for a lump sum for accommodation. It found that, while section 11(1) of the GIA allowed the Circuit Court to make an order for a lump sum for accommodation (M.Y. v. A. Y., unreported, High Court, 11 December 1995), the Circuit Court had no jurisdiction to make such an order under that section as regards non-marital children. The High Court pointed out that the GIA was designed to allow maintenance orders for marital children and that the provision of maintenance for non-marital children was contained in the Illegitimate Children (Affiliation Orders) Act 1930 as repealed and amended by the Status of Children Act 1987, which extended the provisions of the 1976 Act. The 1987 Act did not therefore extend the GIA to non‑marital children, as the applicant argued. The special constitutional protection of a marital family was to be noted in this respect as was the position of the notice party (the father’s wife) “who is a wife working in the home” and “entitled to special protection by virtue of Article 41” of the Constitution. In so finding, the High Court relied on prior jurisprudence including Murphy v. Attorney General ([1982] IR 241) and Ennis v. Butterly ([1996] I IR 426), the latter case in turn relying on The State (Nicolaou) v. An Bord Uchtála [1966] IR 567).
The High Court went on to note that, although the mother had also claimed a lump sum for accommodation during the appeal under section 42 of the 1995 Act, she had done so orally only and not in her written pleadings:
“22. While many of the arguments applicable to s. 11(1) are also relevant in a consideration of this submission ... the claim for housing for the applicant and her son was specified [in] the Civil Bill to be pursuant to s. 11(1) of the [GIA], and no application was made to amend the Civil Bill. On this ground alone I would refuse the applicant’s claim pursuant to s. 42 for the provision of housing for herself and the child P.”
Secondly, the High Court upheld the Circuit Court order for monthly maintenance payments of EUR1200 per month under the 1976 Act.
Thirdly, the High Court also refused the claim for a lump sum for maintenance under section 42 of the 1995 Act:
“27. I have considered the applicant’s request for a lump payment pursuant to s. 42 of the [1995 Act], in addition to the monthly maintenance payment. This application is separate and distinct from the applicant’s request for a lump sum payment for the provision of accommodation for herself and her son. In view of the amount of the monthly maintenance, I do not consider any further sum by way of lump sum payment to be appropriate and I refuse the claim on this basis. While a literal interpretation of s. 42 of the [1995 Act], would appear to allow for the making of a lump sum order in addition to a maintenance order in favour of a non-marital child, I have not considered this Court’s jurisdiction to make such an order and simply hold that in view of the amount of maintenance, an additional lump sum order is not appropriate in the circumstances of this case.”
B. Relevant domestic law and practice
1. The Constitution
Article 41 of the Constitution, in so far as relevant, reads as follows:
“1.1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
1.2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
2.1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2.2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
3.1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
...”
2. The Guardianship of Infants Act 1964 (“the 1964 Act”)
Section 11 of the 1964 Act, in so far as relevant, reads as follows:
“11(1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.
(2) The court may by an order under this section—
(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;
(b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the court considers reasonable.”
3. The Family Law Act 1995
Sections 41 and 42 of the 1995 Act, in so far as relevant, read as follows:
“41. Where, in proceedings under any other Act, the court ... makes or has made an order providing for the payment:
(a) by a spouse to the other spouse of periodical payments for the support or maintenance of that other spouse, or
(b) by a parent to the other parent or to another person specified in the order of periodical payments for the support or maintenance of a child—
(i) of both parents or adopted by both parents under the Adoption Acts, 1952 to 1991, or in relation to whom both parents are in loco parentis, or
(ii) of either parent or adopted by either parent under those Acts or in relation to whom either parent is in loco parentis where the other parent being aware that he or she is not the parent of the child has treated the child as a member of the family,
the court by which the order was made may in those proceedings or subsequently, on application to it by any person having an interest in the proceedings, order the spouse or parent liable to make the payments under the order to secure them to the other spouse or parent or the other person specified in the order to the satisfaction of the court.
42(1) Where, in proceedings under any other Act, an order providing for the periodical payments referred to in paragraph (a) or (b) of section 41 would, apart from this section, fall to be made, the court may in addition to, or instead of such an order, make an order providing for the making by the person concerned to the person concerned of a lump sum payment or lump sum payments of such amount or amounts and at such time or times as may be specified in the order.
(2) The amount or aggregate amount of a lump sum payment or of lump sum payments to a person under an order under this section shall be—
(a) if the order is instead of an order for the making of periodical payments to the person, such amount as the court considers appropriate having regard to the amount of the periodical payments that would have been made, and the periods during which and the times at which they would have been made, but for this section, and
(b) if the first-mentioned order is in addition to an order for the making of periodical payments to the person, such amount as the court considers appropriate having regard to the amount of the periodical payments and the periods during which and the times at which they will be made.”
COMPLAINTS
The applicant complains under Article 6 § 1 about the length of the proceedings having regard to what was at stake for her. She also complains that those proceedings were unfair because, inter alia, the courts did not take account of all relevant circumstances or give sufficient reasons.
She further complains under Article 8 alone and in conjunction with Article 14 about discrimination having regard to the refusal of the lump sum for accommodation under the GIA because her son is a non-marital child and she argues that that sum is not available under section 42 of the 1995 Act.
QUESTIONS TO THE PARTIES
1. Can the applicant claim to be a victim of a violation of her Convention rights insofar as she was refused a lump sum payment for accommodation for her non-marital child?
2. Has the applicant exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention?
3. Has the applicant suffered discrimination contrary to Article 14 in the enjoyment of her right to respect for her family and private life under Article 8 having regard to the refusal of a lump sum for accommodation for a non-marital child?
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