Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16969/90

by Joseph KEEGAN

against Ireland

The European Commission of Human Rights sitting in private on

13 February 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A. WEITZEL

H.G. SCHERMERS

Mrs.G. H. THUNE

SirBasil HALL

Mr.C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 May 1990 by

Joseph Keegan against Ireland and registered on 2 August 1990 under

file No. 16969/90 ;

Having regard to:

-the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the written observations submitted by the respondent Government

on 12 February 1991 and the observations in reply submitted by the

applicant on 7 May 1991;

-the oral submissions of the parties at the hearing on

13 February 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen born in 1964 and resident in

Dublin. He is represented by Brendan Walsh and Partners, solicitors

practising in Dublin.

The facts as submitted by the parties may be summarised as

follows.

On 29 September 1988, the applicant's girlfriend V., with whom

he had been living, gave birth to a daughter S. of which 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 and on 17 November 1988 placed the child

for adoption. On 22 November 1988 V. informed the applicant of the

placement.

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 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.

On 29 May 1989 the Circuit Court appointed the applicant

guardian and awarded him custody.

On appeal 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."

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 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?

On 1 December 1989, the Supreme Court gave its judgment. It

held 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. It considered 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.

On 9 February 1990, the High Court resumed the case. It also

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. The Court found 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, the High Court judge

concluded:

"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."

The appeal of the natural mother and prospective adopters was

therefore allowed.

The question of the adoption of the applicant's daughter is

still to be considered by the Adoption Board.

COMPLAINTS

1. The applicant complains that Article 8 of the Convention has

been violated. He submits that the State has failed to respect his

family life, that it has failed to allow him to form a close

relationship with his daughter, that it has failed to create a legal

nexus between natural father and child in that there is not even a

defeasible right to be appointed guardian and that it has failed to

introduce legal safeguards that render possible a child's integration

in its family from the moment of its birth.

2. The applicant also complains under Article 14 in that he as a

natural father is treated differently as regards his child than a

married father would be.

3. He further complains of a violation of Article 6 of the

Convention in that he has no standing before the Adoption Board.

4. The applicant also complains that the above matters violate the

rights of his daughter to respect for her family life.

RELEVANT DOMESTIC LAW AND PRACTICE

Adoption

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.

Section 8 of the 1952 Act established the Adoption Board (An

Bord Uchtala) to examine and grant applications for the adoption of

children.

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."

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."

Proceedings for custody and guardianship

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."

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 an illegitimate infant.

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."

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 ...'"

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."

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 ..."

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

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

vindicate 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 ..."

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 May 1990 and registered on

2 August 1990.

On 1 October 1990, the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits.

The Government's observations were submitted on 13 February

1991 after an extension of the time-limit and the applicant's

observations were submitted on 7 May 1991 after an extension of the

time-limit.

The Commission decided on 6 March 1991 to grant legal aid to

the applicant.

On 10 October 1991, the Commission decided to hold an oral

hearing.

At the hearing which took place on 13 February 1992, the parties

were represented as follows:

For the Government:

Ms. Emer KILCULLEN:Agent, Department of Fopreign Affairs

Mr. Dermot GLEESON:Senior Counsel

Mr. Michael HANNA:Counsel

Mr. John F. GORMLEY:Adviser, Office of the Attorney General

Mr. Bernard CAREY:Adviser, Department of Health

For the applicant

Ms. Dervla BROWNE:Counsel

Mr. Brendan WALSH:Solicitor

Mr. Joseph KEEGAN:Applicant

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention 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 that the natural father

has not even a defeasible right to be appointed guardian. He also

complains that he was discriminated against as a natural father,

contrary to Article 14 (Art. 14), and that he has no standing before

the Adoption Board, contrary to Article 6 (Art. 6) of the Convention.

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."

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

Article 6 (Art. 6) of the Convention provides in its first

sentence:

"1.In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government submit that the applicant has failed to exhaust

domestic remedies as required by Article 26 (Art. 26) of the Convention

since he did not complain of the failure to consult him about the

adoption in the domestic proceedings, and did not invoke Articles 40.1

and 40.3 of the Constitution.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute a remedy, do not in reality offer any chance of redressing

the alleged breach (cf. Application No. 9248/81, Dec. 10.10.83, D.R.

34 p. 78).

It is furthermore established that the burden of proving the

existence of the available and sufficient domestic remedies lies upon

the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26; Application No.

9013/80, Dec. 11.12.82, D.R. 30 p. 96, at p. 102).

As regards the issue of prior consultation, the Commission finds

no indication that it could usefully have been raised in the

guardianship proceedings which were concerned solely with the question

of whether the applicant should be appointed guardian and awarded

custody. As regards the applicant's alleged failure to raise Articles

40.1 and 40.3 of the Constitution, the Commission notes that the

Supreme Court had regard to the provisions of the Constitution and held

that the applicant had no constitutional right to guardianship. The

Commission is therefore unable to accept that the application should

be declared inadmissible for non-exhaustion of domestic remedies.

The Government also submit that the applicant's complaint under

Article 6 (Art. 6) of the Convention fails to comply with the six month

time- limit imposed by Article 26 (Art. 26) of the Convention since the

applicant did not introduce this complaint within six months of the

commencement of the adoption proceedings.

The Commission recalls that the six month period runs from the

date of the final decision constituting the exhaustion of domestic

remedies (see e.g. Nos. 9266/81, Dec. 28.1.83, D.R. 30 p. 155 and

1017/82, Dec. 12.7.84, D.R. 38 p. 90). Since the applicant's

application for guardianship would have had the result, if successful,

of giving him standing in the adoption proceedings, the Commission

finds that the six months period runs from the conclusion of those

proceedings. This complaint cannot therefore be rejected as failing

to comply with Article 26 (Art. 26) of the Convention.

As regards the substance of the application, the Commission has

had regard to the submissions of the parties. It considers that the

application raises difficult questions of fact and law which are of

such complexity that their determination should depend on an

examination of the merits. The application cannot therefore be

regarded as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

No other grounds for declaring the application inadmissible have

been established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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KEEGAN v. IRELAND

KEEGAN v. IRELAND

LEXI