Jul 1, 2010
The De Facto Same Sex Family and Irish Law
The recent European Court of Human Rights (ECtHR) judgment in Schalk and Kopf v. Austria has been much commented upon in the last while (see here, here, here and here). In Schalk, the ECtHR found that there was no violation of Article 8 or Article 12 (alone or in conjunction with Article 14 of the European Convention on Human Rights) where a state did not provide for same-sex civil marriage. However, the point of this post is to examine the decision of the ECtHR for the possible impact this may have on the concept of de facto family in Irish law, particularly as applying to same-sex couples.
The ECtHR states at para. 92 of Schalk,
…the Court’s case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes “private life” but has not found that it constitutes “family life”, even where a long-term relationship of cohabiting partners was at stake.
After noting the “rapid evolution of social attitudes towards same-sex couples” since 2001, the ECtHR stated (at para. 94):
…the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.
In the relatively recent judgment of the Irish Supreme Court, McD v L (see here for HRiI discussion on this), the Court stated that the High Court was incorrect to recognise a same-sex couple (one of whom was the biological mother of their child) as a de facto family. In the High Court, Hedigan J. held that in light of ECtHR jurisprudence (in particular X, Y and Z v. U.K.), it was likely that the ECtHR would recognise the same-sex couple and their child as a de facto family. Fennelly J. and Denham J. stated that the High Court had attempted to outpace the Strasbourg court, as at the time judgment was rendered, the ECtHR did not recognise same-sex couples as having a right to ‘family life’ under the ECHR. Denham J. was exceptionally categorical that the only type of family recognised in Irish law was the marital family as recognised by the Constitution. Murray C.J. provides a comprehensive overview of the approach of the Irish courts to the ECHR, an international treaty, and how this interacts with the domestic law, The European Convention on Human Rights Act 2003. Murray CJ was concerned that the High Court had not identified any rule of law or statutory provision to be interpreted, but relied on ‘the silence’ of Irish law on the issue of de facto same-sex families.
The general tenor of the McD decision on the issue of de facto families is some cause for concern. There seems to be a very entrenched view at the level of the Supreme Court that Irish constitutional provisions (as currently formulated) will not be expanded beyond the confines of the traditional opposite sex marital family. However, it is also clear that the Oireachtas (Irish Parliament) does have leeway to further enhance the rights of de facto families (be they same or opposite sex). The Civil Partnership Bill 2009 ignores any concept of family life for same-sex couples who enter civil partnerships or who have the co-habitation provisions applying to them. What the Schalk and Kopf v. Austria decision will do, in the short-term, is assist in reorienting the debate on ‘same-sex couple rights” to that of ‘family rights’. The extent to which the Irish legislature will ensure protection of family rights post Schalk and Kopf remains to be seen. However, the failure to properly acknowledge other forms of family units outside that of the opposite sex marital family, especially in the light of Keegan v Ireland, may mean that any legislative or policy changes to guarantee equal respect to all types of families will be some time off.
Do you think that the non-biological mother in McD v. L could now take a case to the European Court of Human Rights on the basis that the Supreme Court ruling leaves her without a right to her family life, as it applies to her child, in breach of Schalk? (And do you know if that would be possible now or would she have left it too late?)
Good question Tomboktu. I am not clear whether a settlement was reached before the case returned to the High Court for decision on the father’s access. Also, we should recall that Schalk was also silent on the issue of children, however in X, Y and Z it was stated that the parties enjoyed family life (in this case a female to male transexual, his female partner and the children they raised). While not wholly within the facts of McD, I feel the ECtHR would consider the couple and child to be a de facto family. As there are also issues regarding the biological father in McD, this would be a very complex issue. I would think that at the very least the High Court would have to consider the right of the de facto family, consider where the best interests of the child lie, and the right of the child to know and develop a relationship with her biological father. Reading the Supreme Court judgments, it seems clear that they agreed with Hedigan J. on the issue of guardianship-but felt that Hedigan J. utilised (amongst other things) the concept of de facto family to deny the father access. The Supreme Court seemed very categorical that there is no concept of de facto family in Irish law (in spite of the ECHR Act 2003 and ECtHR jurisprudence), so would the Oireactas finally grasp this issue? I would doubt in light of the Civil Partnership Bill’s failure to acknowledge that children are already growing up in same sex families.
I think she has gone beyond her time but am open to correction. The thing with McD is not just the Art8 question though, it’s whether there was anything in the case as pleaded that raised a winnable claim under the ECHR Act 2003–that’s the more difficult (domestic law) question in that particular case.
So that would be issue of Guardianship of Infants Acts-potentially-and its interpretation??? Minister in the civil partnership bill debate in Seanad seemed to suggest that they will look at issue of children and parents, and co-non biological parents-its something we need to very urgently consider!
One wonders if the case were REFRAMED. More questions than answers.
Could the child in McD v L have had a guardian ad litem appointed? Would the child have any rights – (1) to a family? – (2) to know his / her mother and partner – (3) to know his / her father? When seen as “Parent and Child one might get one result whereas when one examines the matter as “Child and Parent” one might get a different result.
It seems the un-married father has no rights only obligations? What are the rights of the child?
Can anyone say with a categorical certainty what the best interests of the child are when faced with THREE parents? Do genes trump affection?
The European Court of Human Rights has been at it again!