Keegan v Ireland
| Judgment Date | 26 May 1994 |
RYSSDAL, PRESIDENT, DE MEYER, MARTENS, PALM, PEKKANEN, LOIZOU, MORENILLA, MAKERCZYK, AND BLAYNEY, JJ
Adoption – rights of unmarried fathers – human rights – what constituted family life – whether placement of child for adoption without knowledge of father constituted a breach of his rights in the determination of his civil rights and obligations to a hearing within a reasonable time by a tribunal – duty of State to preserve family ties.
The applicant was an Irish national. He met his girlfriend V in 1987. They became engaged in February 1988. Later that month V discovered she was pregnant. The applicant's relationship with V broke down as the pregnancy progressed. The applicant visited V the day the baby was born but was not allowed to see the baby thereafter. Unbeknown to the applicant, V had made arrangements to have the baby adopted. The applicant only learned of this in November 1988. The applicant applied to be made the baby's guardian. As an unmarried father, he could only be a child's guardian if the court appointed him.
In May 1989 he was appointed guardian by the circuit court and this decision was confirmed by the High Court applying the test:
1. Was he a fit person to be appointed guardian?
2. Whether, notwithstanding this, there was reason in the circumstances that he should not be appointed?
On a case stated the Supreme Court ruled in December 1989 that the High Court had applied the wrong test. The father had no right to be a guardian. His only right was to apply under the Act. The welfare of the child was the first and paramount consideration. The case was referred back to the High Court.
Applying that test the High Court ruled in February 1990 that there would be some trauma if the child was returned by the prospective adoptive family to the father but if the child were left to remain with the adoptive parents there would be no such trauma and the child would be placed in a secure family unit. Leave to adopt was granted.
On an application to the European Court of Human Rights by the applicant:
Held – There was a violation of Articles 8 and 6(1) of the Convention for the protection of Human Rights and Fundamental Freedoms and damages should be awarded.
Breach of Article 8 (respect for family life)(1) The first question was whether there was family which Article 8 could protect?
The concept of family was not confined to marriage relationships. It encompasses de facto family ties where the parties are living together. Here the applicant and V cohabited for two years. The child was a deliberate decision and they had planned to get married. The fact that the relationship had since broken down was irrelevant. A child born out of a relationship was part of a family notwithstanding at the date of the child's birth the child's parents were no longer cohabiting. A bond existed which amounted to family life between the applicant and the child from the moment of the child's birth.
(2) Article 8 seeks to protect the individual against the arbitrary action of a public authority. The court will balance the interest of the country and the individual. Once a family tie had been established, the State must act to enable that tie to be developed and instigate the legal safeguards needed to integrate the child into the family.
(3) The secret placement for adoption of a child without the knowledge or consent of both parents by a State was only permissible for the reasons under Article 8(2). Those grounds were that it was necessary in the interest of public safety, national security, the economic well-being of the country, prevention of crime or the protection of morals or health or the rights or freedoms of others.
(4) The breach of Article 8 by a placement of the child for adoption without the father's knowledge was likely to lead to the bonding of the child with the proposed adopters which it might not be in the child's interests to disturb or interrupt. That not only jeopardized the proper development of the applicant's ties with the child but also set in motion a process which was likely to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters of the child.
Breach of Article 6(1) (right to fair and public hearing by an independent and impartial tribunal)(5) The adoption process was distinct from the guardianship custody proceedings. It was a separate quasi-judicial function. The applicant had no challenge to the instigation of the adoption process. By the time he had the opportunity to exercise recourse by bringing guardianship/custody proceedings, the scales had already tilted in the adopters' favour.
Cases referred to in judgment:Decisions of Irish courts
Eamonn Andres Productions Ltd v Gaiety Theatre Enterprises [1978] IR 295.
N v An Bord Uchála [The Adoption Board] [1966] IR 567.
Decisions of the European Court of Human Rights
Berrehab v The Netherlands; 21 June 1988.
Eriksson v Sweden; 22 June 1989.
Johnston and Others v Ireland; 8 July 1987
Marckx v Belgium; 13 June 1979.
Open Door and Dublin Well Woman v Ireland; 29 October 1992.
Powell and Rayner v The United Kingdom; 29 October 1992.
Note by Registrar:This case is number 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.
PROCEDURE1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 7 April 1993, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (No 16969/90) against Ireland lodged with the Commission under Article 25 on 1 May 1990 by an Irish citizen, Mr Joseph Keegan.
The Commission's request referred to Articles 44 and 48 and to the declaration whereby Ireland recognized the compulsory jurisdiction of the Court (Article 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 of the Convention.
2. In response to the inquiry made in accordance with rule 33, § 3(d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (rule 30).
3. The Chamber to be constituted included ex officio Mr B Walsh, the elected Judge of Irish nationality (Article 43 of the Convention), and Mr R Ryssdal, the President of the Court (rule 21, § 3(b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J De Meyer, Mrs SK Martens, Mrs E Palm, Mr R Pekkanen, Mr AN Loizou, Mr JM Morenilla and Mr J Makarczyk (Article 43 in fine of the Convention and rule 21, § 4).
On 25 May 1993 Mr Walsh withdrew from the Chamber pursuant to rule 24, § 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).
4. As President of the Chamber (rule 21, § 5), Mr Ryssdal, through the Registrar, consulted the agent of the government, the applicant's lawyer and the delegate of the Commission on the organization of the procedure (rules 37, § 1 and 38). Pursuant to the order made in consequence, the Registrar received on 23 September 1993 the applicant's memorial and, on 14 October 1993, the government's. He was subsequently informed by the Secretary to the Commission that the delegate would submit his observations at the hearing.
5. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 November 1993. The court had held a preparatory meeting beforehand.
There appeared before the court:
(a) 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;
(tv)
(b) for the Commission
Sir Basil Hall, Delegate;
(c) 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 case6. 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.
A. The proceedings before the circuit court8. The applicant subsequently instituted proceedings before the circuit court to be appointed guardian under s 6A(1), of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also appliedfor custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the...
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