The High Court has ruled that an unmarried father whose three children were brought to England without his consent is not entitled to be appointed their guardian.
The court also refused to order that the man be granted joint custody of the children or to make orders in relation to access.
In what he described as a difficult and troubling case, Mr Justice John McMenamin also ruled that the removal of the children from Ireland and their continued retention outside the State was not ‘wrongful’ under the Hague Convention or under a European Council regulation.
The reason for this was because the father did not have custody rights as he had never applied to a court for guardianship.
The judge said that proposals for reform in the law on the issues in this case had been mooted over a number of years.
But he said a court must refrain from making any comment on such questions as its obligation was to interpret and apply the law as it presently stands.
The children who are aged nine, seven and two were taken by their mother to England in July last year.
She claimed this was due to an incident in which she found their father drunk while in charge of the children.
The court had heard that the long relationship between the two parents had been unstable and unhappy.
The judge concluded that when the proceedings were begun by the father in December, the ‘habitual residence’ of the children was England.
He described the mother's decision to deprive the father of the opportunity for day to day access to the children as ‘reprehensible’.
But he found that the father did not have any ‘rights of custody’ of the children under the Hague Convention as he never applied to a court to be made a guardian of the children, for reasons which were not explained.
Mr Justice McMenamin also ruled that following a recent Supreme Court decision in the case of a sperm donor who wished to have access to his child, there was no recognition under the Irish Constitution of the concept of a ‘de facto’ family.
The judge also pointed out that to grant the reliefs sought by the man would involve giving no voice to the views of the children because there was no scope in these proceedings for their views to be heard or assessed.
The matter has also been brought before the English High Court.
