Legal abuse of fathers' rights not even noticed

By John Waters, The Irish Times


September 7, 1999

The debate of the past week around the subject of adoption has once again touched on the double-think of our society relating to children born out of wedlock. It demonstrates yet again how the assumptions about the relative rights of unmarried parents have been internalised to an extent that makes acceptable obscene abuses of the human rights of fathers and children.

If I were to summarise the public perception of what is shocking about this matter, I would make a stab along the following lines: a young woman handed her child over to be adopted by the owner of a pregnancy counselling agency to which she had gone for advice, and the High Court found that the adoption was unlawful because the consent was neither informed nor free and was therefore not a "real" consent. This is fair enough in as far as it goes.

The trouble is that is does not extend beyond the assumptions I mentioned before. To have it do so, a number of other questions would require to be asked. Foremost among these would be a question about why it is that, even now that the detail of this case is public knowledge, nobody is asking why the father of Baby A was never asked if he wanted to take his child home. Amid all the outrage since the publication of Ms Justice Laffoy's judgment, while much attention has been focused on the alleged spiriting away of a child from its mother, little mention has been made of the fact that, morally speaking, the treatment of the child's father was far worse.

We know from Ms Justice Laffoy's judgment that, shortly after the birth of Baby A, solicitors acting on behalf of the father wrote to the mother indicating that he wished to be made a joint guardian of this child. It would seem that the mother disregarded this request, and that nobody involved in the adoption considered this request to have any bearing on what was being arranged.

The following sentence appears in the judgment of Ms Justice Laffoy: "The decision was made at a time when the mother had received no independent counselling or advice and, indeed, no proper advice at all in relation to the rights of Baby A, her own rights, the rights of the natural father, the law governing the care, welfare and custody and adoption of children and, most importantly, the restrictions imposed under the Act of 1998 in relation to private placements for adoption".

A CURSORY reading of this might suggest that the issues I have raised above have been anticipated in our legal system and are being addressed now, albeit belatedly, in the legal proceedings arising out of the botched adoption attempt in the case of Baby A. It might also suggest that the Adoption Act 1998 is a remarkably enlightened piece of legislation, bestowing rights and entitlements equally on both natural parents. Such assumptions would be deeply erroneous. The Adoption Act 1998 requires that steps be taken with a view to contacting the natural father before an adoption takes place. It does not demand that the father actually be consulted, but simply that the adoption agency "take such steps as are reasonably practicable" to consult him.

If the mother withholds the father's name, it is possible for an adoption to proceed without any attempt being made to inform him. Even where contact is made with the father, the Act does not propose that he be consulted about whether he would be prepared to rear the child himself - only about whether he has any objections to the proposed adoption. There is no requirement in the 1998 Act to consider whether the "consent" of the father is "informed", "free" or "real".

The father, in effect, has the right to say yes to the adoption, or incur huge costs in an almost certainly doomed attempt to assert his own parenthood. In the event that he is actually consulted, and does not immediately indicate that he has no objection to the adoption, he will learn of his "potential rights" with regard to mounting a challenge to the adoption.

Since a father has no automatic rights as a parent, merely the right to apply to a court for such rights, the only option open to a man in this situation is to apply immediately to the courts for joint guardianship of his child. Without guardianship, he has no right to mount a legal challenge to the adoption.

In the normal course of events he would require the consent of the mother for an application for guardianship to be favourably considered, but it is open to him to try his luck with the court if this consent is not forthcoming.

In practice, then, the only possibility of preventing an adoption of his own child resides in the likelihood that protracted court proceedings between the natural parents about guardianship and/or custody will almost certainly rule out the successful completion of an adoption.

Nobody that I have spoken to in this area can recall a single case in this State in which a father prevented adoption of his child and succeeded in obtaining custody for himself. What this means, in substance and in effect, is that the mother has a virtually unchallengeable entitlement to dispose of "her" child in whatever way she pleases. She alone can decide that a child is to be banished, not just from one side of his or her family, but from both.

The father has no rights, other than a minor capacity to create a nuisance, which, in the Kafkaesque world of family law, would be seen as evidence that he was an unsuitable parent anyway. Thus, the clause in the 1998 Act referring to the father's right to be "consulted" is a fig-leaf to conceal the State's refusal to treat all parents as equal human beings.

Why is it shocking that a handful of mothers have been deprived of their children in dubious circumstances, and not at all shocking that many, many thousands of fathers have been treated far, far worse?

This element of the 1998 Act was cobbled together some four years after the State had been deeply embarrassed in the European Court, when a young Irishman, Joseph Keegan, took a case after his former girlfriend put their child up for adoption without his consent. He won the case, but did not get his child back, because the court found that in the six years it had taken to process the matter, the child had bonded with her adoptive parents and could be separated from them only at enormous emotional cost.

Joseph Keegan had been willing to adopt his own daughter. The mother and her family refused and the forces of the State were marshalled to deny Mr Keegan and his child their fundamental moral right to be together. The adoption issue illustrates yet again the glaring double standard which governs our cultural responses to unmarried parenthood.

Mothers are given virtually unrestricted rights over the lives of children and simultaneously adjudged to be deserving of "compassion" and "support", no matter what they decide; fathers are either ignored and excluded or subjected to criticism and abuse because, usually, they will have behaved in precisely the manner the culture has dictated.

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