EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16969/90
Joseph KEEGAN
against
IRELAND
REPORT OF THE COMMISSION
(adopted on 17 February 1993)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . 1-2
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-42). . . . . . . . . . . . . . . . . . . . . . .3-10
A. Particular circumstances of the case
(paras. 19-29) . . . . . . . . . . . . . . . . . . . . 3-6
B. Relevant domestic law and practice
(paras. 30-42) . . . . . . . . . . . . . . . . . . . .6-10
III. OPINION OF THE COMMISSION
(paras. 43-77). . . . . . . . . . . . . . . . . . . . . . 11-16
A. Complaints declared admissible
(para. 43) . . . . . . . . . . . . . . . . . . . . . . .11
B. Points at issue
(para. 44) . . . . . . . . . . . . . . . . . . . . . . .11
C. Article 8 of the Convention
(paras. 45-58) . . . . . . . . . . . . . . . . . . . 11-13
D. Article 6 of the Convention
(paras. 59-72) . . . . . . . . . . . . . . . . . . . 14-15
E. Article 14 of the Convention
(paras. 73-74) . . . . . . . . . . . . . . . . . . . . .16
F. Recapitulation
(paras. 75-77) . . . . . . . . . . . . . . . . . . . . .16
APPENDIX I History of the proceedings . . . . . . . . . . . .17
APPENDIX II Decision on the admissibility. . . . . . . . . 18-27
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Joseph Keegan, an Irish citizen born in 1964 and
resident in Dublin. He is represented by Brendan Walsh, a solicitor
practising in Dublin.
3. The application is directed against Ireland. The Government are
represented by their Agent, Ms. Emer Kilcullen of the Department of
Foreign Affairs.
4. The case concerns the applicant's complaints that as a natural
father he had no standing in the adoption proceedings concerning his
child born out of wedlock and that domestic law did not allow a natural
father even a defeasible right to be appointed guardian of his child.
It raises issues under Articles 6, 8 and 14 of the Convention.
B. The proceedings
5. The application was introduced on 1 May 1990 and registered on
2 August 1990.
6. On 1 October 1990, the Commission decided to communicate the
application to the respondent Government for their observations on the
admissibility and merits of the application.
7. The Government submitted their written observations on
13 February 1991. The applicant submitted his written observations in
reply on 7 May 1991.
8. The Commission granted the applicant legal aid on 6 March 1991.
9. On 10 October 1991, the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
10. At the hearing, which was held on 13 February 1992, the applicant
was represented by Ms. Dervla Browne, Counsel and Mr. Brendan Walsh,
Solicitor. The Government were represented by Ms. Emer Kilcullen as
Agent, Mr. Dermot Gleeson, Senior Counsel, Mr. Michael Hanna, Counsel
and Mr. John F. Gormley and Mr. Bernard Carey as Advisers.
11. On 13 February 1992, the Commission declared the application
admissible.
12. The parties were then invited to submit any additional
observations on the merits of the application.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions, the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ ]
15. The text of the Report was adopted by the Commission on
17 February 1993 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
16. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
17. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
19. The applicant had a steady relationship with V., his girlfriend,
for two years. They co-habited from February 1987 to February 1988.
20. On 29 September 1988, V., gave birth to a daughter S. of whom the
applicant was the natural father. While the pregnancy had been planned
by both the applicant and V., V. had broken off her relationship with
the applicant prior to the birth. The applicant attempted to keep in
touch with V. by telephone and letter prior to the birth and finding
out the hospital where V. stayed. He visited her and saw the baby at
the hospital when it was one day old. He again visited V. and the
child two weeks later at V.'s parents' home.
21. On 17 November 1988 V. placed the child for adoption. By letter
dated 22 November 1988, V. informed the applicant of the placement.
22. The applicant sought legal advice and instituted proceedings to
be appointed guardian under Section 6 (a) of the Guardianship of
Infants Act 1964 which would have enabled him to apply for custody and
to oppose the proposed adoption. Pursuant to the Adoption Act 1952,
an adoption order cannot be made without the consent of the child's
mother or the child's guardian or other person having charge or control
of the child. While a married father is a guardian of his children,
an unmarried father is not unless so appointed by the Court.
23. On 29 May 1989 the Circuit Court appointed the applicant guardian
and awarded him custody.
24. On appeal 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. The High
Court judge held:
"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."
25. The matter was then referred by the Court by way of case stated
to the Supreme Court. The questions put to the Supreme Court by the
High Court judge, Mr. Justice Barron, were:
(1) Was he correct in his 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 he have applied or
considered whether in relation to guardianship or custody which
derive either from law or from the provisions of the
Constitution?
26. On 1 December 1989, the Supreme Court gave its judgment. It held
by a majority that the High Court had erred in its application of the
Act in presuming a natural father had a right to be a guardian. It
considered that the Act did not give a natural father a right to be a
guardian but only the right to apply to be guardian. 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
was merely one of the many relevant factors which may be viewed as
relevant to that question. Chief Justice Finlay held,inter alia, that:
"... 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 referred back to the High Court for the case to be
decided in light of this interpretation.
27. The High Court resumed the case. It heard additional evidence
including evidence of a consultant child psychiatrist, who gave his
opinion that the child would suffer short-term trauma if moved and
would also suffer the long-term effect in later years of being more
vulnerable to stress and having possible difficulty in forming trust
relationships.
28. In his judgment of 9 February 1990, Mr. Justice Barron recalled
his findings of fact in the case stated to the effect that the
applicant wished bona fide to have custody of his child and that he
felt the existence of an emotional bond. He had noted that if the
applicant obtained custody the child would be brought up in his
parents' home where there was more than adequate accommodation, that
the applicant would fulfil a father's role and the child would be well
looked after. If the child remained with the adopters, who had a
different social and financial position, he had noted that she would
obtain the benefit of a higher standard of living and would be more
likely to stay at school longer. He found also that with the
additional passage of time S's attachment to her adoptive parents had
grown stronger and the likely traumatic effect of the move greater.
Applying the test laid down by the Supreme Court, he concluded:
"I have heard no evidence to cause me to alter my view as to the
differences in the upbringing of a child between the two
competing homes. These differences spring solely from socio-
economic causes and my view should not be taken into
consideration, certainly where one of the clairmants is a natural
parent. 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.
Accordingly in the present case what I must consider is how to
apply the legal test in the light of the dangers to the
psychological health of the infant which Doctor Byrne foresees
would be the result of a change of custody ...
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 recognized 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."
29. The appeal of the natural mother and prospective adopters was
therefore allowed.
B. Relevant domestic law and practice
Adoption
30. The principal Irish legislation providing for the adoption of
children is the Adoption Act 1952. Three amending acts were passed to
that Act in 1964, 1974 and 1976.
31. Section 8 of the 1952 Act established the Adoption Board (An Bord
Uchtala) to examine and grant applications for the adoption of
children.
32. As regards the requisite consent of the natural parent, the 1952
Act provides in section 14 as follows:
"(1) An adoption order shall not be made without the consent of
every person being the child's mother or guardian or having
charge of or control over the child, unless the Board dispenses
with any such consent in accordance with this section.
(2) The Board may dispense with the consent of any person if
the Board is satisfied that that person is incapable by reason
of mental infirmity of giving consent or cannot be found.
...
(6) A consent may be withdrawn at any time before the making of
an adoption order."
33. As regards those persons who are entitled to be heard on an
application for an adoption order, the 1952 Act provides in section 16
as follows:
"(1) The following persons and no other persons shall be
entitled to be heard on an application for an adoption order -
(a) the applicants,
(b) the mother of the child,
(c) the guardian of the child,
(d) a person having charge of or control over the child,
(e) a relative of the child,
(f) a representative of a registered adoption society
which is or has been at any time concerned with the child,
(g) a priest or minister of a religion recognised by the
Constitution (or, in the case of any such religion which
has no ministry, an authorised representative of the
religion) where the child or a parent (whether alive or
dead) is claimed to be or to have been of that religion,
(h) an officer of the Board,
(i) any other person whom the Board, in its discretion,
decides to hear.
(2) A person who is entitled to be heard may be represented by
counsel or solicitor.
(3) The Board may hear the application wholly or partly in
private.
(4) Where the Board has notice of proceedings pending in any
court of justice in regard to the custody of a child in respect
of whom an application is before the Board, the Board shall make
no order in the matter until the proceedings have been
disposed of."
34. Provision for limited judicial involvement is contained in
section 20 of the Act which provides:
"20. (1) The Board may (and, if so requested by an applicant for
an adoption order, the mother or guardian of the child or any
person having charge of or control over the child, shall, unless
it considers the request frivolous) refer any question of law
arising on an application for an adoption order to the High Court
for determination.
(2) Subject to rules of court, a case stated under this section
may be heard in camera."
Proceedings for custody and guardianship
35. As regards proceedings relating, inter alia, to the custody or
guardianship or upbringing of an infant, the Guardianship of Infants
Act 1964 provided as follows:
"3. Where in any proceedings before any court the custody,
guardianship or upbringing of an infant, or the administration
of any property belonging to or held on trust for an infant, or
the application of the income thereof, is in question, the court,
in deciding that question, shall regard the welfare of the infant
as the first and paramount consideration."
"Welfare" in relation to an infant is defined as follows in
section 2 of the said Act:
"'Welfare', in relation to an infant, comprises the religious and
moral, intellectual, physical and social welfare of the infant."
36. It should be noted that the 1964 Act, in section 2, defined
"father" as including a male adopter under an adoption order but this
definition did not include the father of a child born out of wedlock.
37. Section 6 of the 1964 Act provided as follows:
"(1) The father and mother of an infant shall be guardians of
the infant jointly.
(2) On the death of the father of an infant the mother, if
surviving, shall be guardian of the infant, either alone or
jointly with any guardian appointed by the father or by the
court.
(3) On the death of the mother of an infant the father, if
surviving, shall be guardian of the infant, either alone or
jointly with any guardian appointed by the mother or by the
court."
38. The Status of Children Act, 1987 amended the Guardianship of
Infants Act, 1964 in the following way:
"11. Section 6 of the Act of 1964 is hereby amended by the
substitution of the following subsection for subsection (4):
'(4) Where the mother of an infant has not married the
infant's father, she, while living, shall alone be the
guardian of the infant unless there is in force an order
under section 6A (inserted by the Act of 1987) of this Act
or a guardian has otherwise been appointed in accordance
with this Act.'
12. The Act of 1964 is hereby amended by the insertion after
section 6 of the following section:
'6A (1) Where the father and mother of an infant have not
married each other, the court may on the application of the
father, by order appoint him to be a guardian of the
infant.
(2) ... the appointment by the court under this section of
the father of an infant as his guardian shall not affect
the prior appointment of any person as guardian of the
infant under section 8 (1) of this Act unless the court
otherwise orders ...'"
39. As regards the powers and duties of guardians, the 1964 Act
provides as follows:
"10 (1) Every guardian under this Act shall be a guardian of the
person and of the estate of the infant unless, in the case of a
guardian appointed by deed, will or order of the court, the terms
of his appointment otherwise provide.
(2) Subject to the terms of any such deed, will or order, a
guardian under this Act
(a) as guardian of the person, shall, as against every
person not being, jointly with him, a guardian of the
person, be entitled to the custody of the infant and shall
be entitled to take proceedings for the restoration of his
custody of the infant against any person who wrongfully
takes away or detains the infant and for the recovery, for
the benefit of the infant, of damages for any injury to or
trespass against the person of the infant;
(b) as guardian of the estate, shall be entitled to the
possession and control of all property, real and personal,
of the infant and shall manage all such property and
receive the rents and profits on behalf and for the benefit
of the infant until the infant attains the age of
twenty-one years or during any shorter period for which he
has been appointed guardian and may take such proceedings
in relation thereto as may by law be brought by any
guardian of the estate of an infant.
(3) The provisions of this section are without prejudice to the
provisions of any other enactment or to any other powers or
duties conferred or imposed by law on parents, guardians or
trustees of the property of infants."
40. As regards court applications for custody of an infant, the 1964
Act provided 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 ..."
41. This section of the 1964 Act was amended by the 1987 Act as
follows:
"13. Section 11 of the Act of 1964 is hereby amended by the
substitution of the following subsection for subsection (4):
'(4) In the case of an infant whose father and mother have
not married each other, the right to make an application
under this section regarding the custody of the infant and
the right of access thereto of his father or mother shall
extend to the father who is not a guardian of the infant,
and for this purpose references in this section to the
father or parent of an infant shall be construed as
including him.'"
The Constitution of Ireland
42. Article 40 of the Constitution of Ireland provides as follows:
"1. All citizens shall, as human persons, be held equal before
the law.
This shall not be held to mean that the State shall not in its
enactments have due regard to differences of capacity, physical
and moral, and of social function...
3. 1° The State guarantees in its laws to respect, and, as
far as practicable, by its laws to defend and indicate the
personal rights of the citizen.
2° The State shall, in particular, by its laws protect as
best it may from unjust attack and, in the case of injustice
done, vindicate the life, person, good name, and property rights
of every citizen ..."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
43. The Commission declared admissible the applicant's complaints
that the State has failed to respect his family life in that, inter
alia, it allows the placement of a child for adoption without the
knowledge or consent of the natural father and does not afford a
natural father even a defeasible right to be appointed guardian, that
he had no standing before the Adoption Board and that he has been
discriminated against as a natural father.
B. Points at issue
44. The issues to be determined are :
- whether there has been violation of Article 8 (Art. 8) of the
Convention in that the applicant's daughter was placed for
adoption without his knowledge or consent;
- whether there has been violation of Article 8 (Art. 8) of the
Convention as regards the determination of the applicant's claim
to guardianship of his child;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention in that the applicant had no
standing in the adoption procedure;
- whether the applicant has been discriminated against as a natural
father contrary to Article 14 of the Convention in conjunction
with Article 6 and/or Article 8 (Art. 14+6, 14+8) of the
Convention.
C. Article 8 (Art. 8) of the Convention
45. Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
46. The Commission has first examined whether the applicant's
relationship with his daughter S. falls within the scope of "family
life" as protected by the above provision.
47. The applicant submits that he enjoyed a steady relationship with
the child's mother V. and the pregnancy was planned, the applicant
having every intention of fulfilling the role of father to the child
in a stable family setting. The Government submit that the applicant
and S. have never co-habited and that a mere blood relationship is
insufficient in itself to base a claim to the existence of "family
life".
48. The Commission recalls that the existence or not of a "family
life" falling within the scope of Article 8 (Art. 8) of the Convention
will depend on a number of factors, of which co-habitation is only one,
and on the circumstances of each particular case (see eg. No. 12402/86,
Dec. 4.3.88, D.R. 55 p. 224). The application of this principle has
been found by the Commission to extend equally to the relationship
between natural fathers and their children born out of wedlock
(No. 18280/91, Dec. 9.4.92 to be published in DR). Further, the
Commission considers that Article 8 (Art. 8) cannot be interpreted as
only protecting "family life" which has already been established but,
where the circumstances warrant it, must extend to the potential
relationship which may develop between a natural father and a child
born out of wedlock. Relevant factors in this regard include the
nature of the relationship between the natural parents and the
demonstrable interest in and commitment by the natural father to the
child both before and after the birth.
49. The Commission notes that in this case the applicant and the
child's mother co-habited and that their relationship could not be
characterised as casual or fleeting. The High Court found as fact that
the child was planned by both parents and that the applicant felt an
emotional bond with the child whom he had seen briefly after the birth
at the hospital and in respect of whom he had a bona fide desire for
custody. In light of these factors, the Commission finds that the
applicant's links with the child are sufficient to bring the
relationship within the scope of Article 8 (Art. 8) of the Convention.
50. The Commission has therefore examined whether there has been any
failure to respect, or interference with, the applicant's family life
in regard to his complaints that his daughter was placed for adoption
without his knowledge or consent and that he is not afforded as a
natural father even a defeasible right to be appointed guardian of his
child born out of wedlock.
51. The Commission considers that, in effect, the applicant is not
only arguing that the State should refrain from acting as regards the
proposed adoption order but also, and primarily, that it should take
steps to ensure adequate recognition and protection of his rights as
a natural father in respect of his child born out of wedlock. Although
the essential object of Article 8 (Art. 8) is to protect the individual
against arbitrary interference by public authorities, there may in
addition be positive obligations inherent in an effective "respect" for
family life (see eg. Eur. Court H.R., Marckx judgment of 13 June 1979,
Series A no. 31, p. 15, para. 31). In this context, the notion of
"respect" is not clear-cut and its requirements will vary considerably
from case to case according to the practices followed and the
situations obtaining in Contracting States.
52. In determining whether or not such positive obligation exists,
regard must be had to the fair balance which has to be struck between
the general interest and the interests of the individual (see eg. Eur.
Court H.R. Abdulaziz judgment of 28 May 1985, Series A no. 94 p. 34,
para. 67 and the B. v France judgment of 25 March 1992, Series A
no. 232-C para. 44). In striking this balance the aims mentioned in
the second paragraph may be of a certain relevance, although this
provision refers in terms only to "interferences" with the right
protected in the first paragraph ie regarding the negative obligations
imposed (Eur. Court H.R., Rees judgment of 17 October 1986, Series A
no. 106 p. para. 37).
53. The Government have submitted that a flexible approach has to be
taken in regard to this kind of relationship since the circumstances
will vary widely, for example, from a child casually or unintentionally
conceived to a child born out of wedlock but into a stable and
established relationship bearing nearly all the hallmarks of a
constitutionally protected family. They submit that a natural father
is able to apply to the court for guardianship and custody and that his
interests are taken into account but are necessarily subject to the
paramount importance of the child's welfare. To grant a natural father
automatic guardianship would, in their submission, cause unnecessary
testamentary difficulties and inflict anguish on mothers who would be
obliged to dispose of the interests of disinterested or even
antipathetic fathers.
54. The Commission notes the concern of the Government that in
matters concerning children the overriding criterion should be their
welfare. It also acknowledges that the relationship between a natural
father and a child born out of wedlock will differ in nature and
degree. The Commission finds however that under Irish law, the natural
father, whose relationship with the child born out of wedlock falls
within the scope of Article 8 para. 1 (Art. 8-1) of the Convention, is
placed at a considerable disadvantage when attempting to obtain
guardianship or custody of a child whom the mother has placed for
adoption. Since his prior consent or knowledge is not required, the
child may be placed immediately with prospective adopters with whom he
or she will begin to form bonds with the result that by the time the
application by the natural father is determined by the courts the child
will, if the placement has been successful, be secure and established
in the adoptive home.
55. Further, the test applied by the Supreme Court as regards the
weight to be attached to the natural father's right to guardianship
(see para. 26 above) in effect places the burden on the natural father
of establishing that in his care the child would receive a better
quality of welfare. This poses a formidable, if not insuperable
obstacle to a successful application, where, as in the present case,
though the natural father will be able to care materially and
emotionally for a child, it would inevitably cause the child some
psychological trauma to be moved from the adopters'.
56. The Commission has found nothing in the Government's submissions
to indicate that a greater recognition and protection of the interests
of a natural father whose relationship with his child born out of
wedlock falls within the scope of Article 8 (Art. 8) must necessarily
conflict with the primary aim of pursuing the welfare of the child
concerned.
57. Consequently, the Commission finds that under Irish domestic law
the applicant has not been given sufficient recognition to and
protection of his relationship with his daughter S. This situation is
not compatible with the respect due to the applicant's family life
under Article 8 (Art. 8) of the Convention and there has accordingly
been a violation of Article 8 (Art. 8) of the Convention.
Conclusion
58. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention.
D. Article 6 para. 1 (Art. 6-1) of the Convention
59. This provision, as relevant, states :
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law..."
a. Applicability of Article 6 para. 1 (Art. 6-1)
60. The Commission has first examined whether Article 6 para. 1
(Art. 6-1) is applicable to the present case.
61. Article 6 para. 1 (Art. 6-1) applies only to disputes
("contestations") over "rights and obligations" which can be said, at
least on arguable grounds, to be recognised under domestic law. It
does not in itself guarantee any particular content for "rights and
obligations" in the substantive law of the Contracting States (cf. Eur.
Court H.R., Lithgow and Others judgment of 8 July 1986, Series A
no. 102, p. 70, para. 192). On the other hand, it is not decisive
whether a certain benefit, or possible claim, is characterised as a
"right" under the domestic legal system. This is so since the term
"right" must be given an autonomous interpretation in the context of
Article 6 para. 1 (Art. 6-1). In its Report in the case of W. v. the
United Kingdom (Comm. Report 15.10.85, para. 115, Eur. Court H.R.,
Series A no. 121-A, pp. 48-49) the Commission held that:
"Even where a benefit can be granted as a matter of discretion
rather than as a matter of right, a claim for such a benefit may
well be considered to fall within the ambit of (Article 6 para. 1
(Art. 6-1))."
62. It is also established case-law that Article 6 para. 1 (Art. 6-1)
guarantees to everyone who claims that an interference by a public
authority with his "civil rights" is unlawful the right to submit that
claim to a tribunal satisfying the requirements of that provision (see
Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23
June 1981, Series A no. 43, p. 20, para. 44). The claim or dispute
must be "genuine and of a serious nature" (see e.g. Eur. Court H.R.,
Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).
The dispute may relate not only to the actual existence of a right but
also to its scope or the manner in which it may be exercised. The
dispute may concern both questions of fact and questions of law (see
e.g. Eur. Court H.R., Van Marle and Others judgment of 26 June 1984,
Series A no. 101, p. 11, para. 32).
63. The Government argue that Article 6 para. 1 (Art. 6-1) is not
applicable as regards the adoption proceedings since the Adoption Board
has no jurisdiction to settle disputes but merely deals with the making
of adoption orders in compliance with the relevant legislation.
64. The Commission notes that the applicant as a natural father did
not enjoy an automatic right to be appointed as guardian or custodial
parent. The Guardianship of Infants Act 1964 as amended however made
specific provision for a natural father to apply to court to be
appointed guardian and to obtain access or custody (see paras. 38 and
41 above). The domestic courts must have regard on such application
to the wishes and desires of a natural father to enjoy the society of
his child subject to other overriding considerations and have, in the
Government's submission, acknowledged a range of rights which the
natural father has depending on the particular circumstances.
65. The Commission finds therefore that domestic law recognises a
nexus, though a limited and variable one, between a natural father and
a child born out of wedlock.
66. The Commission recalls that the applicant sought to claim
guardianship and custody of S. and to oppose thereby the adoption,
which would have had the effect of extinguishing any right he might
have in respect of her. He argued that he had the right to
guardianship and custody unless there were convincing reasons to
override it and that the welfare of the child would be adequately met
by placement with himself instead of with the adopters.
67. Consequently, the Commission finds that there was a "genuine" and
"serious" dispute over the applicant's rights within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. These rights, relating
to family life, are "civil" in character (see eg Eur. Court H.R., W.
v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 35,
para. 78).
b. Compliance with Article 6 para.1 (Art. 6-1)
68. The present applicant had no standing in the adoption procedure.
The Adoption Board had no duty to consult him or to listen to any
submissions from him. He could not apply by case stated to the High
Court from the Adoption Board (see para. 34 above).
69. The Government have submitted that the applicant was nonetheless
able to have his claims determined before the Irish courts in a manner
complying fully with the requirements of Article 6 para. 1 (Art. 6-1)
of the Convention, referring to his application for guardianship which
was considered on four occasions - once before the Circuit Court and
Supreme Court and twice before the High Court.
70. Since however the guardianship proceedings were distinct from the
adoption procedure, the Commission finds no substance in the above
argument.
71. The Commission considers it unnecessary to decide whether the
Adoption Board is itself a "tribunal" within the meaning of Article 6
(Art. 6) or whether the possibility of review by the High Court would
have furnished the necessary judicial control. The applicant did not
in any case have the possibility of having his objection to the
adoption determined by either. The Commission finds that consequently
the applicant did not have at his disposal a procedure satisfying the
requirements of Article 6 para. 1 (Art. 6-1) in respect of his dispute
as to the placement of S. for adoption.
Conclusion
72. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
E. Article 14 of the Convention in conjunction with Article 6 and/or
Article 8 (Art. 14+6, 14+8)
73. In view of the findings in paras. 59 and 73 above, the Commission
does not consider it necessary to examine the complaint that as the
result of the shortcomings complained of in the domestic system the
appliant also suffered discrimination contrary to Article 14 (Art. 14)
in the enjoyment of his right to respect for his family life or his
right to a fair hearing in the determination of his civil rights (see
eg. Eur. Court H.R., Beldjoudi judgment of 22 March 1992, Series A
no. 234-A).
Conclusion
74. The Commission concludes, by 11 votes to 1, that it is
unnecessary to examine whether there has been a violation of Article 14
of the Convention in conjunction with Article 6 and/or Article 8
(Art. 14+6, 14+8).
F. Recapitulation
75. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention (see para. 58 above).
76. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention (see
para. 72 above).
77. The Commission concludes, by 11 votes to 1, that it is
unnecessary to examine whether there has been a violation of Article 14
of the Convention in conjunction with Article 6 and/or Article 8
(Art. 14+6, 14+8) (see para. 74 above).
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
01.05.90 Introduction of the application
02.08.90 Registration of the application
Examination of admissibility
01.10.90 Commission's decision to invite the parties to submit
observations on the admissibility and merits
13.02.91 Government's observations
06.03.91 Commission's grant of legal aid
07.05.91 Applicant's reply
10.10.91 Commission's decision to hold an oral hearing
13.02.91 Hearing on the admissibility and merits
13.02.92 Commission's decision to declare the application
admissible
Examination of the merits
13.02.92 Commission's deliberations on the merits
05.12.92 Consideration of the state of proceedings
09.02.93 Commission's deliberations on the merits and final
votes
17.02.93 Commission's adoption of the Report
Full & Egal Universal Law Academy