CASE OF KEEGAN v. IRELAND
(Application no. 16969/90)
26 May 1994
In the case of Keegan v. Ireland*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr J. Makarczyk,
Mr J. Blayney, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 26 November 1993 and on 19 April 1994,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Ireland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 8 and/or 14 (art. 6, art. 8, art. 14) of the Convention.
On 25 May 1993 Mr Walsh withdrew from the Chamber pursuant to Rule 24 para. 2. By letter of 30 June 1993 the Agent of the Government of Ireland ("the Government") notified the Registrar of the appointment of the Hon. Mr Justice John Blayney, a judge of the Supreme Court of Ireland, as an ad hoc judge (Article 43 of the Convention and Rule 23) (art. 43).
There appeared before the Court:
- for the Government
Mrs E. Kilcullen, Assistant Legal Adviser,
Department of Foreign Affairs, Agent,
Mr D. Gleeson, Senior Counsel,
Mr M. Hanna, Counsel,
Mr D. McFadden,
Mr B. Carey, Advisers;
- for the Commission
Sir Basil Hall, Delegate;
- for the applicant
Ms D. Browne, Counsel,
Mr B. Walsh, Solicitor,
Ms C. Walsh, Adviser.
The Court heard addresses by Sir Basil Hall, Ms Browne and Mr Gleeson as well as replies to questions put by several of its members.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
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.
A. The proceedings before the Circuit Court
B. The proceedings before the High Court
"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."
C. The proceedings before the Supreme Court
"(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?"
"... 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.
D. The subsequent proceedings before the High Court
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."
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Appeals to the Supreme Court
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.
"(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."
2. Entitlement to be heard by the Adoption Board
"(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."
3. Application to the High Court
"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."
C. Custody and guardianship
1. Welfare of the child
"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."
2. Rights of married parents
"(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."
3. Rights of the natural father
"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 ...’"
"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;
"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.’"
4. Powers of guardians
D. Recent developments in Irish adoption practice
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.
PROCEEDINGS BEFORE THE COMMISSION
The full text of the Commission’s opinion is reproduced as an annex to this judgment*.
AS TO THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Whether the applicant can complain on his daughter’s behalf
B. Whether the applicant failed to exhaust domestic remedies
(1) that the applicant had not appealed to the Supreme Court against the final determination of the guardianship and custody proceedings by the High Court;
(2) that he had failed to complain before the Irish courts of the fact that the law did not enable him to become involved in the adoption process and, in particular, to be consulted by the Adoption Board prior to any adoption;
(3) that he had not challenged the constitutionality of the legal provisions relating to a natural father by bringing proceedings in the High Court alleging that the State had failed to afford him equal treatment compared to a married father and had failed to vindicate his personal rights.
Apart from this, under Irish law no appeal lies from the decision of the High Court on an appeal from the Circuit Court (see paragraph 16 above).
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
"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."
A. Applicability of Article 8 (art. 8)
B. Compliance with Article 8 (art. 8)
1. Paragraph 1 of Article 8 (art. 8-1)
Moreover, the test applied by the Supreme Court to determine the question of custody placed him at a considerable disadvantage vis-à-vis the adoptive parents by requiring him to show that any advantages that they had to offer the child were not important for her welfare. In his submission, to be consistent with Article 8 (art. 8) the law ought to have conferred on him a defeasible right to guardianship and, in any competition for custody with strangers, there ought to have existed a rebuttable legal presumption that the child’s welfare was best served by being in his care and custody. He stressed, however, that he was not seeking to overturn the adoption order that had been made in respect of his child.
The applicant, as the Supreme Court had held, had a right to apply to be made a guardian, which right he had exercised. Furthermore, the Supreme Court took into account the blood link between him and his daughter as one of the factors to be weighed in the balance in assessing the child’s welfare. In addition, the applicant had every opportunity to present his case and to have his interests considered by the courts. However, in this process the rights and interests of the mother, who had wanted her child to be adopted, had also to be taken into account.
In particular, the Government emphasised that to grant a natural father a defeasible right to guardianship could give rise to complications, anguish and hardship in other cases and concerned a matter of social policy on which the European Court should be reluctant to intervene.
2. Paragraph 2 of Article 8 (art. 8-2)
(a) "In accordance with the law" and legitimate aim
(b) Necessity in a democratic society
They contended that it was fair and wholly consistent with the Convention that special regulations be enforced to protect the interests of a child born out of wedlock. Indeed it would be impractical and potentially harmful to the interests of such a child to grant the natural father rights that extended beyond a right to apply for guardianship. In any event the Adoption Board may, in its discretion, decide to hear the natural father.
The Government have advanced no reasons relevant to the welfare of the applicant’s daughter to justify such a departure from the principles that govern respect for family ties. That being so, the Court cannot consider that the interference which it has found with the applicant’s right to respect for family life, encompassing the full scope of the State’s obligations, was necessary in a democratic society. There has thus been a violation of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
"1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..."
The Commission upheld his complaint.
Against this background, it is not necessary to decide whether the Adoption Board, which admittedly exercises certain quasi-judicial functions, is a tribunal within the meaning of Article 6 para. 1 (art. 6-1).
IV. ALLEGED VIOLATION OF ARTICLE 14 (art. 14)
V. APPLICATION OF ARTICLE 50 (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
1. Pecuniary loss
2. Non-pecuniary loss
B. Costs and expenses
This amount is to be increased by any value-added tax that may be chargeable.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that it is not necessary to examine the Government’s objection concerning the applicant’s standing to complain on behalf of his daughter;
2. Dismisses the remainder of the Government’s preliminary objections;
3. Holds that there has been a violation of Article 8 (art. 8);
4. Holds that there has been a violation of Article 6 para. 1 (art. 6-1);
5. Holds that it is not necessary to examine the applicant’s complaint under Article 14 (art. 14);
6. Holds that Ireland is to pay to the applicant, within three months, IR £12,000 (twelve thousand) in respect of non- pecuniary and pecuniary damage and, in respect of costs and expenses, the sums resulting from the calculation to be made in accordance with paragraph 71 of the judgment.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 May 1994.
For the Registrar
* Note by the Registrar : The case is numbered 16/1993/411/490. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
* Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 290 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.