The (D)evolving nature of guardianship rights for unmarried fathers under Irish law?
Tobin, Brian
Tobin, Brian
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2020
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journal article
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Tobin, Brian. (2020). The (D)evolving nature of guardianship rights for unmarried fathers under Irish law? Child and Family Law Quarterly, 32(3), 285.
Abstract
This article analyses the initial judicial unease with guardianship applications by unmarried fathers following the commencement in 1988 of legislation allowing such fathers to apply to the court to be appointed a guardian of their child, and it examines the courts’ more recent, child-focussed attitude towards these applications. The article demonstrates that subsequent statutory innovations in the area of guardianship have given rise to a legislative approach that favours the acquisition of post-birth guardianship rights without the necessity for court intervention only for those unmarried fathers who have an amicable relationship with, or are cohabiting with, the child’s mother. The article argues that this reticent legislative approach is largely aligned with the early, conservative judicial attitude to guardianship applications that endorsed differentiating between unmarried fathers depending on the strength of their relationship with, and commitment to, the child’s mother. The article concludes that the prevailing legislative approach to guardianship rights for unmarried fathers is insufficiently child-focussed because it fails to have due regard to the Children’s Amendment, Article 42A of the Irish Constitution, and the contemporary, child-focussed approach to guardianship applications in the courts, as well as the more flexible legislative approach to acquiring parental responsibility in England and Wales.
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Attribution-NonCommercial-NoDerivatives 4.0 International