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A case some time ago that was heard in the Supreme Court, found in favour of a Gay man having access to his son who was born through his sperm donation to a Lesbian couple. The parties involved agreed that the man would have some access as determined by the couple to see the child, but when the couple decided to restrict his access and then announce that they were moving to Australia for a year, the man brought the case to court to prevent this from happening. The man went to the Supreme Court after being unsuccessful at the High Court and won access to his son.
So what does this tell us, well it shows that Irish Law has taken into account the rights of the child in this case to have both biological parents actively involved in his life, however while the court made this judgement, the Oireachtas and in particular, this present Government, has once again abdicated its responsibility due to political cowardice, by delaying the Childrens Rights Referendum in the aftermath for a significant period of time and then introducing an amendment to the constitution that still fell way short in addressing childrens rights in the context of the family structure. By refusing to face up to embracing TRUE equality for same sex couples, unmarried fathers and their children, when it was put to the people there was a distinct opportunity missed to coperfasten a childs right to the love and access of both biological parents. Although the campaign was marked by a level of apathy, the Government passed what was far from a radical reform of childs rights.
Speaking ahead of the vote, campaigners against the amendment has their concerns for childrens and fathers rights under the Governments proposals. Fathers’ rights campaigner Ray Kelly of Unmarried and Separated Families of Ireland said the referendum was “a golden opportunity wasted to give children an equal right to have a father”. Columnist John Waters, writing in the Irish Mail on Sunday , said the lack of “a guarantee of the protection of the child’s rights to maintain a personal relationship and regular contact with both parents . . . must raise questions as to the ideological basis of this referendum”.
So it’s over half a year since the referendum was passed when more than 3.1 million people were eligible to vote, at the time the campaign failed to capture the imagination of vast swathes of the public. Turnout registered at just 33.5 per cent and the children’s referendum was endorsed by 57.4 per cent to 42.6 per cent, with just three constituencies opposing the Thirty-First Amendment of the Constitution (Children) Bill 2012.
The Lesbian couple, by their actions in this case outlined above, have illustrated the problems that Same Sex Marriage would bring, if it is introduced before there is real and substantial reform of Childrens Rights, Fathers Rights and Unmarried Parents rights. In this country at present Married Couples and Unmarried Mothers are granted automatic Guardianship when their child is born, however the unmarried father does not, and must attend the family court and get the consent of the mother to attain Guardianship of his own child, this is fundamentally against the interests of the child in most cases, however not in all cases, I must stress!
In practical terms, it means a unmarried father who is looking after his child will not be given consent to have his child treated by medical staff if the child becomes sick or has an accident whilst in his care, unless he has gone to the courts to become the legal guardian of the child. If the father wishes to become guardian he must go to the family court, whose cases are heard ‘in camera’, therefore there is no official record of the outcomes of these procedures. Whilst in court the mother can, if she so wishes, oppose the father being granted legal guardianship and in many cases the judge will rule in favour of the mothers wishes, unless the Father can make compelling arguments to convince the judge to rule in his favour. In anecdotal terms, the judiciary will often given the benefit of the doubt to the mother as the perceived primary carer of the child. This is based on the concept of the traditional perception of the family unit, however in our society now this is not as clearly defined and widely accepted as it once was.
Over the last few decades we have seen the Gay Communities tireless work to achieve basic rights and the efforts that have been made to achieve equal rights in this basket case of a banana republic, but as with all interest groups their own priorities can be in conflict with others groups rights to equality and fairness. This case demonstrates a lesbian couple considering their interests more important than the rights of the child involved to see his father, and also denies this gay mans right to see his son.
Groups and individuals, including Marriage Equality, need to understand that their calls for Civil Marriage for Gay and Lesbian Couples in this country are misguided in the current legal and legislative climate. Until childrens rights are recognised in the constitution by referendum and a constitutional amendment is made to expand the definition of ‘family’ outside of a hetrosexual married couple to include unmarried parents, single mothers and fathers, gay and lesbian couples and others, only then can Civil Marriage even be contemplated. The Government has aspired to such equality, but in real terms has not delivered it and the Childrens Rights referendum did not adequately address the issue of the complexity of family structures in this country. Almost eight months on, do children who still don’t have access or visiting rights to see their fathers have more rights than they did before the referendum was passed?
Until this anomaly is addressed, there are serious legislative and legal difficulties in the determination and definition of the family unit and the rights of the child and both biological parents. If Civil Marriage was in place, the only groups who would be entitled to automatic guardianship of their children would be married hetrosexual and lesbian couples and unmarried or single women, be they lesbian or straight. In other words until the state recognises that childrens rights are of fundamental importance and that by extension all children should have the RIGHT to the care and love of both their parents, whenever possible, only then will there be equality! Furthermore no loving well meaning father should be denied a part in their childs life by any mother, legislation, court or inept and cowardly Government.
There is no provision in Ireland to legally bind ad hoc sperm donation agreements, so this father did get justice, although only access to his son and not guardianship. This was a landmark case for Gay Men, Unmarried Fathers and Childrens Rights, but shows that the lesbian couple in this case believed that their rights were more equal than the rights of the child and his father, this has been the legacy of this states inequitable and unfair family law for generations whereby Fathers rights, be they gay or straight, have consistently been denied.
As Fathers Day approaches, bear in mind our politically correct aspirations that permeate throughout our society, and rightly so in many cases, we should have an equal and tolerant society. But why is it that for some reason in this day and age we as a society do not recognise the importance of a childs right to have access to their father as well as their mother, and why does automatic guardianship still not extend automatically to unmarried biological fathers as it does to unmarried biological mothers? Does a child choose to love one parent more than the other, does a child deserve to have access to both their mother and father if it is in the best interests of the child, and why should children be denied the love of a caring, considerate and compassionate father that provides for and nurtures their offspring, due to legal wrangling, bad legislation, confrontational and confidential courts and bitter disputes.
Article by John J.O’Donovan