Lexploria

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

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KEEGAN v. IRELAND

KEEGAN v. IRELAND

LEXI