CASE OF KEEGAN v. IRELAND
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
R. Pekkanen
6. The applicant met his girlfriend Miss V. ("V.") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married. On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V.’s parents’ home but was not permitted to see either V. or the child. 7. During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988. 8. The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child’s mother and the child’s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below). 9. On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody. 10. Following an appeal against the judgment of the Circuit Court 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. Mr Justice Barron of the High Court stated: "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." 11. After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows: "(1) Am I correct in my 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 I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?" 12. Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. 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 as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia: "... 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 then referred back to the High Court for the case to be decided in light of this interpretation. 13. The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming "trust" relationships. 14. In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond. He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view "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". Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows: "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 recognised 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." 15. An adoption order was subsequently made in respect of the child. 16. A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court (Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated. 17. The adoption of children in Ireland is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976. Section 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child. 18. Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant’s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964). 19. As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides 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." 20. As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides 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." 21. The Supreme Court has held in the leading case of the State (Nicolaou) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the "family" in Article 41 of the Constitution related only to the "family" based on marriage. 22. Section 20 of the 1952 Act 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." 23. 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." 24. 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." 25. The definition of "father" under section 2 of the 1964 Act did not include the father of a child born out of wedlock. 26. 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 ...’" 27. 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; ..." 28. 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.’" 29. The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10). 30. The following developments have taken place subsequent to the facts of the present case. By memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is. Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings. By a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is (a) named as father on the child’s birth certificate, (b) in a continuous relationship with the mother, he should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application. In addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption.