CASE OF JOHNSTON AND OTHERS v. IRELAND
Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 8 and 12;No violation of Art. 14+8;Violation of Art. 8 regarding the legal situation of the third applicant under Irish law;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
C. Russo;Gaukur Jörundsson;J.A. Carrillo Salcedo
10. The first applicant is Roy H.W. Johnston, who was born in 1930 and is a scientific research and development manager. He resides at Rathmines, Dublin, with the second applicant, Janice Williams-Johnston, who was born in 1938; she is a school-teacher by profession and used to work as director of a play-group in Dublin, but has been unemployed since 1985. The third applicant is their daughter, Nessa Doreen Williams-Johnston, who was born in 1978. 11. The first applicant married a Miss M in 1952 in a Church of Ireland ceremony. Three children were born of this marriage, in 1956, 1959 and 1965. In 1965, it became clear to both parties that the marriage had irretrievably broken down and they decided to live separately at different levels in the family house. Several years later both of them, with the other’s knowledge and consent, formed relationships and began to live with third parties. By mutual agreement, the two couples resided in self-contained flats in the house until 1976, when Roy Johnston’s wife moved elsewhere. In 1978, the second applicant, with whom Roy Johnston had been living since 1971, gave birth to Nessa. He consented to his name being included in the Register of Births as the father (see paragraph 26 below). 12. Under the Constitution of Ireland (see paragraphs 16-17 below), the first applicant is unable to obtain, in Ireland, a dissolution of his marriage to enable him to marry the second applicant. He has taken the following steps to regularise his relationship with her and with his wife and to make proper provision for his dependents. (a) With his wife’s consent, he has consulted solicitors in Dublin and in London as to the possibility of obtaining a dissolution of the marriage outside Ireland. His London solicitors advised that, in the absence of residence within the jurisdiction of the English courts, he would not be able to do so in England, and the matter has therefore not been pursued (see also paragraphs 19-21 below). (b) On 19 September 1982, he concluded a formal separation agreement with his wife, recording an agreement implemented some years earlier. She received a lump-sum of IR£8,800 and provision was made for maintenance of the remaining dependent child of the marriage. The parties also mutually renounced their succession rights over each other’s estates. (c) He has made a will leaving his house to the second applicant for life with remainder over to his four children as tenants in common, one half of the residue of his estate to the second applicant, and the other half to his four children in equal shares. (d) He has supported the third applicant throughout her life and has acted in all respects as a caring father. (e) He contributed towards the maintenance of his wife until the conclusion of the aforementioned separation agreement and has supported the three children of his marriage during their dependency. (f) The second applicant has been nominated as beneficiary under the pension scheme attached to his employment. (g) He has taken out health insurance in the names of the second and third applicants, as members of his family. 13. The second applicant, who is largely dependent on the first applicant for her support and maintenance, is concerned at the lack of security provided by her present legal status, in particular the absence of any legal right to be maintained by him and of any potential rights of succession in the event of intestacy (see also paragraph 23 below). As is permitted by law, she has adopted the first applicant’s surname, which she uses amongst friends and neighbours, but for business purposes continues to use the name Williams. According to her, she has felt inhibited about telling employers of her domestic circumstances and although she would like to become an Irish citizen by naturalisation, she has been reluctant to make an application, not wishing to put those circumstances in issue. 14. The third applicant has, under Irish law, the legal situation of an illegitimate child and her parents are concerned at the lack of any means by which she can, even with their consent, be recognised as their child with full rights of support and succession in relation to them (see paragraphs 30-32 below). They are also concerned about the possibility of a stigma attaching to her by virtue of her legal situation, especially when she is attending school. 15. The first and second applicants state that although they have not practised any formal religion for some time, they have recently joined the Religious Society of Friends (the Quakers) in Dublin. This decision was influenced in part by their concern that the third applicant receives a Christian upbringing. 16. The Constitution of Ireland, which came into force in 1937, includes the following provisions: "40.3.1o 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. 40.3.2o 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. 41.1.1o The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 41.1.2o The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. (...) 41.3.1o The State pledges itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack. 41.3.2o No law shall be enacted providing for the grant of a dissolution of marriage. (...) 42.1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. (...) 42.5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child." 17. As a result of Article 41.3.2o of the Constitution, divorce in the sense of dissolution of a marriage (divorce a vinculo matrimonii) is not available in Ireland. However, spouses may be relieved of the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation (also known as a divorce a mensa et thoro); such a decree, which is obtainable only on proof of commission of adultery, cruelty or unnatural offences, does not dissolve the marriage. In the remainder of the present judgment, the word "divorce" denotes a divorce a vinculo matrimonii. It is also possible to obtain on various grounds a decree of nullity, that is a declaration by the High Court that a marriage was invalid and therefore null and void ab initio. A marriage may also be "annulled" by an ecclesiastical tribunal, but this does not affect the civil status of the parties. 18. The Irish courts have consistently held that the "Family" that is afforded protection by Article 41 of the Constitution is the family based on marriage. Thus, in The State (Nicolaou) v. An Bord Uchtála The Adoption Board 1966 Irish Reports 567, the Supreme Court said: "It is quite clear from the provisions of Article 41, and in particular section 3 thereof, that the family referred to in this Article is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State. While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many, if not all, of the outward appearances of a family, and may indeed for the purposes of a particular law be regarded as such, nevertheless as far as Article 41 is concerned the guarantees therein contained are confined to families based upon marriage." The Supreme Court has, however, held that an illegitimate child has unenumerated natural rights (as distinct from rights conferred by law) which will be protected under Article 40.3 of the Constitution, such as the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being, as well as the same natural rights under the Constitution as a legitimate child to "religious and moral, intellectual, physical and social education" (G v. An Bord Uchtála 1980 Irish Reports 32). 19. Article 41.3.3o of the Constitution provides: "No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage dissolved." 20. A series of judicial decisions has established that the foregoing provision does not prevent the recognition by Irish courts, under the general Irish rules of private international law, of certain decrees of divorce obtained, even by Irish nationals, in another State. Such recognition used to be granted only if the parties to the marriage were domiciled within the jurisdiction of the foreign court at the time of the relevant proceedings (Re Caffin Deceased: Bank of Ireland v. Caffin 1971 Irish Reports 123; Gaffney v. Gaffney 1975 Irish Reports 133; however, since 2 October 1986 a divorce will be recognised if granted in the country where either spouse is domiciled (Domicile and Recognition of Foreign Divorces Act 1986). To be regarded as domiciled in a foreign State, a person must not only be resident there but also have the intention of remaining there permanently and have lost the animus revertendi. Moreover, the foreign divorce will not be recognised if domicile has been fraudulently invoked before the foreign court for the purpose of obtaining the decree. 21. If notice is served for a civil marriage before a Registrar of Births, Marriages and Deaths in Ireland and he is aware that either of the parties has been divorced abroad, he must, under the regulations in force, refer the matter to the Registrar-General. The latter will seek legal advice as to whether on the facts of the case the divorce would be recognised as effective to dissolve the marriage under Irish law and as to whether the intended marriage can consequently be permitted. 22. Persons who, like the first and second applicants, are living together in a stable relationship after the breakdown of the marriage of one of them are unable, during the lifetime of the other party to that marriage, to marry each other in Ireland and are not recognised there as a family for the purposes of Article 41 of the Constitution (see paragraphs 17 and 18 above). 23. Such persons, unlike a married couple, have no legal duty to support or maintain one another and no mutual statutory rights of succession. However, there is no impediment under Irish law preventing them from living together and supporting each other and, in particular, from making wills or dispositions inter vivos in each other’s favour. They can also enter into mutual maintenance agreements, although the Government and the applicants expressed different views as to whether these might be unenforceable as contrary to public policy. In general, the married member of the couple remains, at least in theory, under a continuing legal obligation to maintain his or her spouse. In addition, testamentary dispositions by that member may be subject to the rights of his or her spouse or legitimate children under the Succession Act 1965. 24. As compared with married couples, persons in the situation of the first and second applicants: (a) have no access, in the event of difficulties arising between them, to the system of barring orders instituted to provide remedies in respect of violence within the family (Family Law (Maintenance of Spouses and Children) Act 1976, as amended by the Family Law (Protection of Spouses and Children) Act 1981); they can, however, obtain analogous relief by seeking a court injunction or declaration; (b) do not enjoy any of the rights conferred by the Family Home Protection Act 1976 in relation to the family home and its contents, notably the prohibition on sale by one spouse without the other’s consent and the exemption from stamp duty and Land Registry fees in the event of transfer of title between them; (c) as regards transfers of property between them, are less favourably treated for the purposes of capital acquisition tax; (d) enjoy different rights under the social welfare code, notably the benefits available to deserted wives; (e) are unable jointly to adopt a child (see also paragraph 29 below). 25. In Irish law, the principle mater semper certa est applies: the maternal affiliation of an illegitimate child, such as the third applicant, is established by the fact of birth, without any requirement of voluntary or judicial recognition. The Illegitimate Children (Affiliation Orders) Act 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act 1976 and the Courts Act 1983, provides procedures whereby the District Court or the Circuit Court may make an "affiliation order" against the putative father of a child directing him to make periodic payments in respect of the latter’s maintenance and also whereby the court may approve a lump-sum maintenance agreement between a person who admits he is the father of an illegitimate child and the latter’s mother. Neither of these procedures establishes the child’s paternal affiliation for all purposes, any finding of parentage being effective solely for the purposes of the proceedings in question and binding only on the parties. 26. Under the Registration of Births and Deaths (Ireland) Act 1863, as amended by the Births and Deaths Registration (Ireland) Act 1880, the Registrar may enter in the register the name of a person as the father of an illegitimate child if he is so requested jointly by that person and the mother. The act of registration does not, however, establish paternal affiliation. 27. The mother of an illegitimate child is his sole guardian as from the moment of his birth (section 6(4) of the Guardianship of Infants Act 1964) and has the same rights of guardianship as are jointly enjoyed by the parents of a legitimate child. The natural father can apply to the court under section 11(4) of the same Act regarding the child’s custody and the right of access thereto by either parent; however, he cannot seek the court’s directions on other matters affecting the child’s welfare nor is there any means whereby he can be established as guardian of the child jointly with the mother, even if she consents. 28. An illegitimate child may be legitimated by the subsequent marriage of his parents, provided that, unlike the first and second applicants, they could have been lawfully married to one another at the time of the child’s birth or at some time during the preceding ten months (section 1(1) and (2) of the Legitimacy Act 1931). 29. Under the Adoption Act 1952, as amended, an adoption order can only be made in favour of a married couple living together, a widow, a widower, or the mother or natural father or a relative of the child. 30. The effect of the Illegitimate Children (Affiliation Orders) Act 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act 1976, is to impose on each of the parents of an illegitimate child an equal obligation to maintain him. This obligation cannot be enforced against the father until an "affiliation order" has been made against him (see paragraph 25 above). 31. The devolution of estates on intestacy is governed by the Succession Act 1965 which provides, basically, that the estate is to be distributed in specified proportions between any spouse or "issue" who may survive the deceased. In O’B v. S 1984 Irish Reports 316, the Supreme Court held that the word "issue" did not include children who were not the issue of a lawful marriage and that accordingly an illegitimate child had, under the Act, no right to inheritance on the intestacy of his natural father. Whilst also holding that the resultant discrimination in favour of legitimate children was justifiable by reason of sections 1 and 3 of Article 41 of the Constitution (see paragraph 16 above), the Supreme Court stated that the decision to change the existing rules of intestate succession and the extent to which they were to be changed were primarily matters for the legislature. The relevant rules in the Act formed part of a statute designed to strengthen the protection of the family in accordance with Article 41, an Article which created not merely a State interest but a State obligation to safeguard the family; accordingly, the said discrimination was not necessarily unjust, unreasonable or arbitrary and the said rules were not invalid having regard to the provisions of the Constitution. An illegitimate child may, on the other hand, in certain circumstances have a right to inheritance on the intestacy of his mother. A special rule (section 9(1) of the Legitimacy Act 1931) lays down that where the mother of an illegitimate child dies intestate leaving no legitimate issue, the child is entitled to take any interest in his mother’s estate to which he would have been entitled if he had been born legitimate. 32. As regards testate succession, section 117 of the Succession Act 1965 empowers a court to make provision for a child for whom it considers that the testator has failed in his moral duty to make proper provision. An illegitimate child has no claim against his father’s estate under this section, but may be able to claim against his mother’s estate provided that she leaves no legitimate issue. 33. An illegitimate child inheriting property from his parents is potentially liable to pay capital acquisition tax on a basis less favourable than a child born in wedlock. 34. In 1983, a Joint Committee of the Dáil (Chamber of Deputies) and the Seanad (Senate) was established, inter alia, to examine the problems which follow the breakdown of marriage. In its report of 1985, it referred to figures suggesting that approximately 6 per cent of marriages in Ireland had broken down to date, but noted the absence of accurate statistics. The Committee considered that the parties to stable relationships formed after marriage breakdown and the children of such relationships currently lacked adequate legal status and protection; however, it expressed no view on whether divorce legislation was at present necessary or desirable. In a national referendum held on 26 June 1986, a majority voted against an amendment of the Constitution, which would have permitted legislation providing for divorce. 35. In September 1982, the Irish Law Reform Commission published a Report on Illegitimacy. Its basic recommendation was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage. After considering the report, the Government announced in October 1983 that they had decided that the law should be reformed, and that reform should be concentrated on the elimination of discrimination against persons born outside marriage and on the rights and obligations of their fathers. However, the Government decided not to accept a proposal by the Law Reform Commission that the father be given automatic rights of guardianship in relation to a child so born. 36. In May 1985, the Minister of Justice laid before both Houses of Parliament a Memorandum entitled "The Status of Children", indicating the scope and nature of the main changes proposed by the Government. On 9 May 1986, the Status of Children Bill 1986, a draft of which had been annexed to the aforesaid Memorandum, was introduced into the Seanad. If enacted in its present form, the Bill - which has the stated purpose of removing as far as possible provisions in existing law which discriminate against children born outside marriage - would have, inter alia, the following effects. (a) Where the name of a person was entered on the register of births as the father of a child born outside marriage, he would be presumed to be the father unless the contrary was shown (cf. paragraph 26 above). (b) The father of a child born outside marriage would be able to seek a court order making him guardian of the child jointly with the mother (cf. paragraph 27 above). In that event, they would jointly have all the parental rights and responsibilities that are enjoyed and borne by married parents. (c) The proviso qualifying the possibility of legitimation by subsequent marriage would be removed by the repeal of section 1(2) of the Legitimacy Act 1931 (see paragraph 28 above). (d) The legal provisions governing the obligation of both of the parents of a child born outside marriage to maintain him would be similar to those governing the corresponding obligation of married parents (see paragraph 30 above). (e) For succession purposes, no distinction would be made between persons based on whether or not their parents were married to each other. Thus, a child born outside marriage would be entitled to share on the intestacy of either parent and would have the same rights in relation to the estate of a parent who died leaving a will as would a child of a family based on marriage (cf. paragraphs 31 and 32 above). The Explanatory Memorandum to the Bill states that any fiscal changes necessitated by the proposed new measures would be a matter for separate legislation promoted by the Minister for Finance. 37. Work is also in progress on legislation reforming the law of adoption, following the publication in July 1984 of the Report of the Review Committee on Adoption Services. That Committee recommended that, as at present (see paragraph 29 above), unmarried couples should not be eligible to adopt jointly even their own natural children.