resolution DH (99) 123

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 26 May 1994 IN THE CASE OF Keegan AGAINST Ireland

(Adopted by the Committee of Ministers on 19 February 1999 at the 659th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Keegan case delivered on 26 May 1994 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No.16969/90) against Ireland, lodged with the European Commission of Human Rights on 1 May 1990 under Article 25 of the Co n vention by Mr Joseph Keegan , an Irish national, and that the Commission declared admissible the complaints regarding first, a violation of his right to respect for his family life in that his child had been placed for adoption without his knowledge or consent and that national law did not provide him even a defeasible right to be appointed guardian and secondly a violation of his right of access to court;

Recalling that the case was brought before the Court by the Commission on 7 April 1993;

Whereas in its judgment of 26 May 1994 the Court, unanimously,:

- held that it was not necessary to examine the government’s objection concerning the applicant’s standing to complain on behalf of his daughter;

- dismissed the remainder of the government’s preliminary objections;

- held that there had been a violation of Article 8 of the Convention;

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- held that it was not necessary to examine the applicant’s complaint under Article 14 of the Convention;

- held that the Government of the respondent State was to pay to the applicant, within three months, 12 000 Irish pounds in respect of non-pecuniary and pecuniary damage and, in respect of costs and expenses, 42 863 Irish pounds less 51 691.29 French francs, with the addition of any value added tax which might be chargeable;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of the judgment of 26 May 1994, having regard to Ireland’s obligation under Article 53 of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment, which information appears in the appendix to this resolution;

Having satisfied itself that within the time-limit set, the Government of the respondent State paid the a p plicant the sum provided for in the judgment of 26 May 1994,

Declares, after having taken note of the information supplied by the Government of Ireland, that it has exe r cised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (99) 123

Information provided by the Government of Ireland during the examination of the Keegan case

by the Committee of Ministers

Subsequent to the facts at the origin of the present case a number of developments have taken place limiting the possibilities of new violations of the Convention.

A memorandum of 30 April 1990 from the Registrar of the Adoption Board, took the first steps to prevent this kind of situation arising.

This memorandum notified the relevant Adoption Societies and social workers, inter alia , of the rights of the natural father to apply for joint guardianship and/or custody of, or access to, his child. Their attention was also drawn to the desirability of ascertaining the mother’s and, where practicable, the father’s intentions in relation to the child as regards adoption. Adoption agencies were advised to consider the prudence of delaying the placement for a period where they had indications that the natural father opposed placement for adoption (in no circumstances should such placement be decided where the natural father had applied to a court).

By letter of 6 April 1992 the Adoption Board informed the relevant adoption societies and social workers of a review of policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures: whenever a natural father was named as father on the child’s birth certificate and was in continuous relation with the mother, he should be notified of the application to adopt his child and offered a hearing by the Adoption Board on the application.

Subsequently new forms were introduced by the Adoption Board making the fullest relevant enquiries for the purpose, inter alia , of ascertaining the identity and intentions of the natural father as regards the proposed adoption.             

A bill proposing further measures to comply with the judgment of the European Court of Human Rights in the Keegan case was introduced in 1996 and was signed into law on 29 April 1998.  The Adoption Act, 1998, provides a legally protected right to natural fathers to be consulted in matters of adoption of their children.

The new law sets out a formal procedure for consulting the natural father, if known, or any person who believes that he is a father of a child born out of wedlock, before a child is placed for adoption, so as to allow the father an opportunity to exercise his right to apply for guardianship and/or custody of the child if he so wishes. Among the most important features of the new law the following may be cited.

Where a father indicates that he has no objection to adoption, the responsible adoption agency may proceed to place the child with adoptive parents. If the father objects, the agency must notify him and the mother that it is deferring the placement for a period of not less than 21 days for the purpose of affording the father an opportunity to make an application to court for guardianship and/or custody of the child. If no notice of such an application is received within the deferral period, the agency may then place the child for adoption. However, if at any time before the child is placed for adoption, the agency receives notice of an application to court by the father, the agency is precluded from proceeding with the placement until the proceedings are concluded. Provision is made for the expedition of any such proceedings in the best interests of the child concerned.

The adoption agency may refrain from consulting the father in the following circumstances: where the agency is unable, after taking such steps as are reasonably practicable, to consult a father whose identity is known to it; where the nature of the relationship between the father and the mother or the circumstances of the conception of the child are such that it would be inappropriate to contact the father, for example in the case of rape; where the identity of the father is unknown to the agency and the mother refuses to reveal his identity; where the mother makes a statutory declaration stating that she is unable to identify the father and the agency has no other practical way of ascertaining his identity. Except in the last case, the authority of the Adoption Board must be obtained for the placing of the child for adoption.

The act also includes the natural father among the persons entitled to be heard by the Adoption Board on an application for an adoption order.

The Government of Ireland considers that these measures will prevent a repetition of the violations found by the European Court of Human Rights and ensure full compliance with Article 53 of the Convention.