Archive

Archive for December, 2009

The UK Supreme Court Dismisses the Jewish Free School Appeal

December 16, 2009 5 comments

A nine-judge panel of the United Kingdom Supreme Court today delivered what the Guardian is describing as ‘the most controversial ruling since the supreme court [sic] was created’. Whilst the Court, in the words of its President Lord Phillips (at [8]), ‘has not welcomed being required to resolve this dispute’, it ruled, in a 259 paragraph judgment, that the Jewish Free School’s (JFS) admissions policy amounted to direct discrimination on the basis of race. Whilst further commentary will undoubtedly follow over the next few days, there follows a brief summary of this decision. Mairead Enright blogged on the Court of Appeal’s decision on this case when the Supreme Court heard the case in October (here and here).

At issue was whether part of the JFS’s policy for choosing between potential pupils in the event of oversubscription (and, as Lord Phillips noted at [5], ‘JFS is an outstanding school. For many years far more children have wished to go there than there have been places in the school’) which gave priority to applicants regarded as “Jewish by birth”. M, a child who applied to the JFS, was denied a place at the school because, in the determination of the Office of the Chief Rabbi of the United Kingdom, M’s mother was not Jewish at the time of M’s birth as her conversion to Judaism had not taken place in an Orthodox synagogue. Read more…

Job Opportunities: IHRC Human Rights Education Project

December 16, 2009 6 comments

The IHRC has advertised for two positions on human rights education:

  • Project Co-Ordinator
  • Assistant Co-ordinator

See www.ihrc.ie for more details.

HUMAN RIGHTS EDUCATION PROJECT

(Funded by Atlantic Philanthropies)

Established under the Human Rights Commission Acts 2000 & 2001, the Irish Human Rights Commission (IHRC) has a wide ranging remit to promote and protect human rights as defined in international agreements to which Ireland is a party and in the Irish Constitution.

The IHRC human rights education project funded by the Atlantic Philanthropies aims to provide targeted human rights education to civil and public servants in the justice sector. The project aims to provide these stakeholders, in the short term, with increased awareness of applicable human rights standards and increased capacity to conduct internal training. The Project will achieve its aims through (1) the provision of targeted human rights education training for certain sectors of the civil and public service (2) the creation of a human rights education handbook for civil and public servants in the ‘justice sector’ and provision of initial training for trainers on the handbook. The duration of the project is 16 months.

The IHRC is now seeking 1 Project Co-ordinator and 1 Assistant Co-ordinator to work with current staff of the IHRC taking direction of IHRC Director of Research, Policy and Promotion, under the authority of the Chief Executive.

PROJECT CO-ORDINATOR

The IHRC is seeking responses from highly qualified candidates interested in implementing this project as part of a project team. Applicants will need to meet the following essential criteria:

  • A degree in law, education, humanities, or the social sciences, or other qualification which is acceptable to the Commission as being at least equivalent to a degree in any of the aforementioned subjects and relevant to the duties of the position
  • A strong knowledge of Irish and international human rights standards and mechanisms
  • Demonstrated project management skills
  • Experience of developing training and educational materials on human rights or related subjects
  • Experience of using participatory training methodologies
  • Experience of preparing, organising and delivering education and training courses on human rights or related subjects
  • Ability to manage one’s own work effectively, to use own initiative and be self-motivated
  • Ability to oversee and to evaluate the work of others
  • Excellent communications and writing skills
  • Excellent interpersonal skills, including the ability to work as part of a team
  • Experience of managing staff
  • Excellent networking skills
  • Sound judgement and integrity
  • At least 8 years satisfactory experience of relevance to the duties associated with the position

ASSISTANT CO-ORDINATOR

The IHRC is also seeking responses from highly qualified candidates interested in the contract of Project Officer. Applicants will need to meet the following essential criteria:

  • a primary degree in education, law, social science or a related discipline
  • Good knowledge of human rights and international law
  • Experience in providing research support in relation to education and training initiatives in human rights related fields
  • Some experience in an education and/or training field related to human rights
  • Strong research, writing and organisational skills
  • Some experience of event management
  • Be a ‘self-starter’ who is enthusiastic about the promotion of human rights and can operate with limited direction / supervision
  • Excellent interpersonal skills, including the ability to work as part of a team
  • Sound judgement and integrity
  • Strong word processing skills and familiarity with the internet

Respondents should have experience relevant to the duties associated with the position.  It is the applicant’s responsibility to provide evidence of how she or he meets these criteria.

Both contracts will be awarded on the basis of a 16 month contract for services.  The successful contractors will not be members of staff of either the IHRC or Atlantic Philanthropies.

Letter of application with comprehensive CV, marked ‘Human Rights Education Project’ to Kirsten Roberts, Director Research Policy and Promotion at info@ihrc.ie by 5 January 2010.

More details can be found by following the below links:

Contract Specification for Project Co-ordinator.doc (58 KB)

Contract Specification for Assistant Co-ordinator.doc (47 KB)

A light at the end of the tunnel for Madgalene Laundries survivors?

December 16, 2009 1 comment

The Irish Times reports that the government will consider new evidence detailing State involvement in the referral of women to Magdalene laundries in the 1960s before it decides whether to provide redress to former inmates.

The decision yesterday by Minister for Education Batt O’Keeffe follows an admission by Department of Justice officials this week that women were transferred following court appearances to a church-run asylum on Sean McDermott Street, Dublin, during the 1960s.

According to a Spokesman for the Minister, “the information now being referred to by the group wasn’t available when the Minister for Education and Science issued his letter on September 4th, 2009,”

Significantly, a Department of Justice spokesman confirmed yesterday they now knew and accepted that a number of women charged with criminal offences were remanded in one Magdalene laundry under arrangements made by the Department of Justice. The spokesman also asserted that a number of women convicted of criminal offences were also given the alternative of going to prison or a Magdalene laundry by the courts.

These revelations are consistent with claims made by Justice for Magdalenes, a group representing survivors, which have previously been discussed on this blog.

Bearing in mind the acknowledgement by the Deparment of Justice that the state did in fact play a role in relation to the referral of women to Magdalene laundries, it seems incumbent on the Minister to revisit his conclusion that former residents are not eligible for compensation from the Residential Institutions Redress Board due to the fact that the state was ‘not complicit’ in referring women to the laundries.

Pre-Implantation Embryos and the Irish Constitution

December 15, 2009 1 comment

As we blogged earlier the Supreme Court today decided the case of Roche v Roche concerning, inter alia, the constitutional status of spare embryos created through IVF treatment but not implanted. The case also had important private law aspects but it is the constitutional issue that is most relevant to us at HRinI. Having now read the judgments in this case I have picked out some of the relevant quotes re the constitutional issue from the various judges. As I suspected earlier, the matter is perhaps not as cut and dried and it at first appeared in the news reports mainly because of some equivocation in the Chief Justice’s judgment although the remaining judgments seem to me on an early reading quite categorical in their finding that pre-implantation embryos do not have constitutional protection.

It is appropriate to begin with the judgment of the Chief Justice which is available here. Following an overview of the moral and ethical dilemmas faced in considering when it might be said that ‘life’ begins, the Chief Justice held that this is essentially a legislative matter as opposed to one of pure constitutional interpretation:

One comes back to the fundamental issue in this case namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, ethical, philosophical, theological and scientific. It is an issue on which engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

Absent a broad consensus on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

….

…in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The Courts do not have at its disposal objective criteria to decide this as a justiciable issue….The onus rests in the Oireachtas, to make the initial policy determination so as to define by law when ‘the life of the unborn’ acquires protection. The other alternative is an amendment to the Constitution.

….

Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos, constitute “life of the unborn” within the meaning of Article 40.3.3.

I don’t think  CJ’s judgment holds that constitutional protection begins at implantation and that is that. Rather it think it says that we can not be satisfied that the constitutional protection begins pre implantation. Making that decision is not a judicial role. It is a policy matter. He essentially invites the Oireachtas to legislate in this context. However, the CJ’s judgment stands alone in this context. The starkest contrast is perhaps with the judgment of Denham J available here: Read more…

2009 Dublin University Law Journal

December 15, 2009 Leave a comment

The new DULJ is out and features a number of contributions touching on human rights including three by members of HRinI:

  • The Constitution, Property Rights and Proportionality: A Reappraisal (Rachael Walsh) p.1
  • Is Silence Golden? The Legislative and Judicial Treatment of Pre-Trial Silence in Ireland (Yvonne Daly) p.35
  • Access to Justice and Costs in Environmental Judicial Review (Phyllis Comerford) p.66
  • Domination and the Hijab in Irish Schools (Tom Hickey) p.127
  • Restrictions on Religious Dress in French Republican Thought: Returning the Secularist Justification to a Rights-based Rationale (Eoin Daly) p.154
  • Legal Positivism, Natural Law and the Constitution (Oran Doyle) p.206
  • Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution (Tom Daly) p.228
  • Visiting Committees and Accountability in the Irish Prison System: Some Proposals for Reform (Mary Rogan) p.298
  • Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-based Approach for Legal Reform? (Eilionóir Flynn) p.357
  • Protecting Young People from Themselves: Reform of Age of Consent Law in Ireland (Catherine O’Sullivan) p.386
  • Recent Issues in Refugee Family Reunification under Irish Law (Patricia Brazil) p.412
  • Fair Procedures, Local Authority Housing, the Constitution and the European Convention on Human Rights (Mark Coen) p.423

Ireland to take over as Chair of the OSCE in 2012

December 15, 2009 Leave a comment

At the 17th Ministerial Conference of the Organisation for Security and Co-Operation in Europe (OSCE) in early December it was agreed by the member states that Ireland would take over as Chair of the Organisation  in 2012.  The OSCE is a regional security body that currently has over 56 participating states including members in Europe, Central Asia and North America such as the United States, the UK, the Holy See, France, Russia and Canada. Ireland joined the organisation as an original member in 1973, though the organisation in its current form emerged in 1994 in the post Cold War era.  Its work covers areas such as arms control, anti-trafficking, combating terrorism, conflict prevention, democratisation, elections, gender equality, minority rights, policing, rule of law, tolerance and non-discrimination.

At the recent ministerial conference Minister Micheál Martin T.D. stated

Ireland attaches great importance to the role and expertise of the OSCE in the protection of human rights and fundamental freedoms and the promotion of the rule of law and democratisation throughout the OSCE area.

Ireland attaches great importance to the role and expertise of the OSCE in the protection of human rights and fundamental freedoms and the promotion of the rule of law and democratisation throughout the OSCE area.

The announcement that Kazakhstan was to take over the Chair from Greece in 2010 led to some controversy, as Kazakhstan’s human rights record was not considered to be good enough to lead  an organisation that seeks to support human rights development and enforcement in its members states.  Indeed Human Rights Watch described the choice of Kazakhstan as ‘undeserved’

“Kazakhstan doesn’t observe OSCE commitments at home,” said Holly Cartner, Europe and Central Asia director at Human Rights Watch. “Entrusting in Kazakhstan the leadership to uphold the organization’s human rights commitments is a singularly bad idea.”

The choice of Lithuania to follow from Kazakhstan has been less controversial.  The Irish Department of Foreign Affairs announced in November that after Ireland had been approached by a number of members the Government had decided to formally make itself available as Chair of the Organisation in 2012.  Ireland’s Chair  was confirmed at the Ministerial Conference.  It was reported in the Irish Examiner that the Minister in welcoming Ireland’s appointment considered Ireland’s experience in the peace process in Northern Ireland would allow Ireland to make a tangible contribution to the work of the organisation.  As we nearer the time for Ireland to take over as Chair of the Organisation it will be interesting to see what human rights priorities for the Organisation that it champions.

Embryos and the Right to Life: The Supreme Court Decision

December 15, 2009 2 comments

RTE News reports that the Supreme Court has handed down its judgment in a case in which case the appellant was seeking to have three embryos created with her ex-partner released to her for implantation. Her ex-partner, on the other hand, claimed that there was no agreement permitting her to have these embryos for use following the dissolution of the relationship. From a human rights perspective it is particularly important to note that a sizeable amount of the argumentation revolved around whether an embryo is entitled to constitutional protection under Article 40.3.3 of the Constitution (right to life). The Supreme Court held that the constitutional protection only applied from the point of implantation of an embryo and not from the point of creation.

The judgment is not currently available online although we anticipate that it will be posted relatively shortly. It is somewhat difficult to draw conclusions from a news report of a court decision, and it would be wise to wait to read the exact terms of the Court’s decision on implantation and constitutional protection before commenting on its constitutional significance, however if the RTE report is an accurate representation of the Court’s decision in this respect then this would seem to put any questions that may have existed about measures such as the morning after pill beyond constitutional doubt.

We on HRinI will, of course, be covering the human rights law elements of this decision further as the judgment is released, digested and discussed.

UPDATE The judgments in this case can now be accessed from the Courts Service website by clicking here.

LRC Report on Criminal Defences

December 15, 2009 Leave a comment

(from http://www.lawreform.ie)

The Law Reform Commission’s Report, Defences in Criminal Law was published yesterday and is available on their website. The lengthy Report is the result of extensive research and consultation, including a seminar and three consultation papers. The Report deals with the defences of legitimate defence; public defence; provocation and duress and necessity. The main recommendations of the Commission’s Report are available in the Commission’s press release here.

The Irish Times reports that the Minister for Justice Dermot Ahern intends to enact the draft Criminal Law (Defences) Bill 2009, which is attached as an appendix to the Report.

While space does not permit a detailed analysis of the recommendations, this blog discusses the recommendations relating to legitimate defence and provocation. For the rest of the recommendations, see here.

Legitimate Defence:

The Commission recommends a new defence of ‘legitimate defence’ to replace that of self-defence. The new term reflects the justificatory (as opposed to excusatory, as the partial defence of provocation) rationale underlying the defence; in other words, society is not condemning the defendant’s actions, because they are viewed as being in some way justified or required by the exigencies of the situation facing the defendant. It is therefore a full defence to a charge of murder.

The Commission’s recommendations are grounded in 4 key requirements, designed to help jurors navigate a path around discriminatory and biased assumptions and wholly subjective standards. These core requirements are:

(1) A threshold requirement concerning the type of unlawful attack on the person, especially where lethal force is used in response

(2) The imminence or immediacy of the attack

(3) The necessity of the defendant’s use of force including a duty to retreat where it is safe to do so.

(4) The proportionality of the force used, including where disproportionate lethal force is used. Crucially, the test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person. Excessive self-defence is retained for cases in which the force used was not objectively necessary and proportionate.

In and of themselves, these recommendations are not particularly revolutionary. The case-law developed in relation to the defence of self-defence contains all of these requirements. The problem however is that they were bundled up into the rather confusing concept of “reasonable in all the circumstances”, thus forcing trial juries with the difficult takes of unpacking the meaning of reasonable and applying it to the defendant in the case before them.

The most newsworthy recommendations in the Report are likely to be those relating to the defence in the home. According to the Commission:

The Commission recommends that the general requirements for legitimate defence (Self-defence) should apply to defence of the dwelling and its vicinity.

The Commission recommends that the general rule that a person should retreat where possible does not apply where the attack is in the home.

The Commission also recommends that, if all the requirements of the defence are met, use of lethal force would be a complete defence to murder and would lead to an acquittal.”

This recommendation enshrines the castle doctrine – in other words, the defendant does not have to retreat when faced with an unlawful attack in his or her home. In this recommendation the Commission is echoing the judgment of the Court of Criminal Appeal in DPP v Barnes [2006] IECCA 165.  There the Court confirmed the constitutional protection afforded to the dwelling house by Article 40.3.3. Furthermore, under section 8 of the Non-Fatal Offences Against the Person Act 1997 the use of force is lawful in order to protect property. The issue of course is the amount of violence employed and its relation to the threat posed. Indeed the Court in Barnes stressed, “it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill [a burglar] simply for being a burglar.”

Commissioner and Professor of Criminal Law at UCD Finbarr McAuley identifies the need for clarity in the law in this area:

“The current law leaves everything caught up in a vague rubric of reasonableness. We need to codify the law and set out limits in terms that give substance to overarching legal concepts,” he said.

“Shooting a man in the back as he flees in retreat can hardly be described as necessary. But on a vague reasonableness basis, who knows what a jury might think?”

Crucially, the changes proposed in section 3 of the Draft Bill in relation to the use of lethal force against an intruder, are prefaced by the words “ Without prejudice to the generality of section 2”. Section 2 contains the requirements of imminence, threshold, (which are repeated in section 3); necessity to retreat, where it is safe to do so (this is even in the case of the home) and proportionality.

If a person is attacked in their own home, it is highly likely that the requirement of imminence will be satisfied without any recourse to arguments about the importance of the dwelling home. Simply put, if the homeowner faced an imminent threat to his or her life or bodily integrity, then a proportionate and necessary response would quite possibly be the use of lethal force. In reality the threat to the home often also encompasses the threat to the homeowner’s personal safety. However, in cases where the intruder merely threatens the homeowner’s property interests- for example by simply entering the house, unarmed, to steal the car keys, the jury would surely not be expected to find that the use of lethal force was justified? This is the kernel of the controversy raised by the Commission’s recommendations. There is a dissonance between the Commission’s recommendations and the provisions of the Draft Bill. While the Report and the recommendations emphasise that the force used in defence of property should be subject to the requirements of imminence, necessity and proportionality,(p.45)  these factors are not made clear in the provisions of the Draft Bill. Section 3 sets out that a person is justified in using lethal force in his dwelling-or in the vicinity  of the dwelling- if that force is by way of a defence to the threat of or the use of serious personal harms,(eg rape, death)  but importantly, also to repel the entry or occupation fo eth dwelling or damage or destruction of the dwelling. It would therefore appear that the Commission’s Draft Bill goes much further than the CCA  did in Barnes and seems to be placing the right to defence of property above the right to life of the intruder. The constitutionality of such a move is doubtful. Indeed the courts will be vigilant to ensure that homeowners do not cross the line from defence  to revenge, as happened in a recent case in Britain. The ICCL has criticised the provisions  as a “have a go charter” that will place homeowners at increased risk of , by encouraging them to stand their ground even when it is safe to escape. However it is precisely this didactic function of the criminal law reform that Minister Ahern is keen to stress. He is cited on the Irish times website as saying that:

“This is putting burglars on notice that if they do go into houses in this way that the person in the house is given more protection than here-to-fore.”

In light of the predictable rise in property crime that tends to accompany recessions, it will be interesting to see what the courts, and more importantly, what jurors will make of  this defence, if enacted. Certainly while its instrumental character is consonant with current cultural narratives surrounding property crime and crimes against the elderly, it remains to be seen if the government will see fit to place on a clear statutory footing the requirements of necessity, proportionality and imminence, when considering the draft legislation.

In this regard it is also important to remember the case of DPP v Nally [2006] IECCA 128, which raised interesting questions about the role of the jury in the legitimacy of the criminal justice process. In that case the defendant’s first conviction for manslaughter was quashed by the Court of Criminal Appeal because the trial judge had failed to allow the full defence of self-defence to go to the jury, holding instead that the evidence supported a conviction for murder or for manslaughter, but not an acquittal. The trial judge’s insistence on a “truncated” version of self-defence was fatal, essentially because it undermined the legitimating function of the jury in the criminal justice system. In its report, the Commission notes that “The impact of the Court of Criminal Appeal decision in Nally cannot be underestimated in terms of procedural issues regarding self-defence and in terms of the relationship between judges and jury” (at p.42). However the Commission stressed that it was concerned with the substantive content of the defence.

Provocation:

The Commission also makes a number of recommendations relating to the defence of provocation. Space does not permit a detailed analysis here. However the key issue to note is that the Commission seems to be keen to inject an element of objectivity into the assessment of the defendant’s response to the allegedly provocative act.

“The defence should be based primarily on whether the provocation (words or acts,

such as assault) was such that it was reasonable for the accused, based on the

standard of an ordinary person, to have lost self-control. “

This is a most welcome development in light of the excessively subjective bias of the provocation defence under the current law. Indeed, in People (DPP) v Davis [2001] 1 IR 146,157- The Court of Criminal Appeal accepted that it is virtually impossible to disprove evidence of provocation once it has been introduced under the rubric of the subjective test established under DPP v MacEoin People (DPP) v Mac Eoin [1978] IR 27

In relation to cumulative provocation, the Commission emphasises that the focus should not solely be on the temporal link between the allegedly provocative act and the defendant’s actions. Instead ” the the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self-control. This could be especially relevant in the context of cumulative violence.”

While the defence of Battered Women Syndrome has not been embraced in Irish law, a not dissimilar version was accepted by the Central Criminal Court in People (DPP) v Hennessy (Finnegan J) October 2000 and April 2001, where it appears to have been accepted that evidence of the “surrounding circumstances” leading to the killing could go to the jury on the issue of provocation. (Irish Times 11 October 2000 at 4 “Husband Killed wife in a moment of rage”).  Given that the circumstances in question were that the accused was suffering from stress occasioned by the fact that he had been suspended from his job on suspicion of embezzlement, and that the trial judge acknowledged the deceased’s contribution to his violent out burst – she had told him he was “no good” and had “slapped him across the face” – appeared to be of a very low level., the trial judge still allowed the appeal to go the jury. The jury found that there was a sudden temporary loss of self control. It was noted that the accused suffered from a very sever stress when the embezzlement began, but that he was responsible for the stress thus created.  He was sentenced to 8 years for manslaughter.

Last Friday a jury accepted a plea of diminished responsibility (a relatively new partial defence, created by the Criminal Law (Insanity) Act 2006) and acquitted a woman of the murder of her husband and found her guilty of his manslaughter.  The Irish Times Report is here.

The defendant hit her husband on the head 23 times with a hammer. Over six days the jury heard “harrowing evidence’ of an extremely violent and abusive marriage. The Sunday Tribune carries an evocative portrayal of the litany of abuse endured by the defendant and her children at the hands of the deceased.  Two psychiatrists who gave medical evidence on behalf of both the defence and prosecution agreed that the defendant was suffering from a mental disorder, i.e. severe depression, at the time of the killing.

From a critical feminist perspective, the construction of female anger and violence as occurring in circumstances of diminished responsibility is consonant with traditional legal systems construction of women defendants as mad or bad. The hystericisation and medicalisation of female defendants is in stark contrast to the male conception the defence of provocation.  Furthermore, quite apart from the issues of gendered binaries, is that of the medicalisation of women’s stories of lethal violence, where the ‘truth’ is filtered through a series of professional discourses, including psychiatric and legal discourses, that distances the public and the jury from the reality of violence against women and the reasons why they might use lethal violence.

While the Commission does not deal directly with these issues, it opens the door to a broader conception of the meaning of ‘relevant circumstances’, stressing that “[t] he fact that the killing did not immediately follow the provocation does not, in itself, mean that the defence cannot be raised. Instead, the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self- control. This could be especially relevant in the context of cumulative violence.”

It remains to be seen whether this recommendation signposts a movement towards a broader conception of provocation, or whether women defendants will have to continue to resort to medicalised discourses in pleading mitigating circumstances.

Bias Against Immigrants to Ireland

December 14, 2009 1 comment

The Irish Times reports that more than half of all sub-Saharan Africans to Ireland have experienced discrimination.  The Times is working from the EU-MIDIS survey, available here. The survey team interviewed 23,500 people from ethnic minority and immigrant groups in the EU about their experiences of discrimination.

Categories: Race

Shannon on Zaunegger v Germany

December 14, 2009 Leave a comment

Today’s Irish Times carries an article by Geoffrey Shannon on the implications for Irish law of the decision in Zaunegger v Germany. Here is a taster – the article is worth a read.

THE RECENT European Court of Human Rights judgment on the rights of an unmarried father may have far-reaching implications for Ireland, writes Geoffrey Shannon.

The court recently handed down a very important decision on joint custody that may have far reaching implications for the rights of unmarried fathers in Ireland. Joint custody involves a child residing with each parent for a stipulated period.

The significance of this ruling, however, derives from the rights it attributes to marriage-like relationships rather than its consideration of joint custody per se.

Under Irish law, unmarried fathers do not have an automatic right to the day-to-day care of their children (known as “custody”) nor do they have an automatic right to a say in the upbringing of their children (known as “guardianship”). Nor do unmarried fathers have a right to joint custody. Rather, they have a statutory right to apply for guardianship, custody or joint custody, which will be determined according to the nature of the relationship between the child and the unmarried father.

Following the recent decision of the European Court of Human Rights in Zaunegger v Germany, the Irish law governing the attribution of guardianship, custody and joint custody should be reviewed to determine its compatibility with the European Convention on Human Rights.