CEDH · CASELAW;REPORTS;ENG — 17 février 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }      EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16969/90                                Joseph KEEGAN                                   against                                   IRELAND                          REPORT OF THE COMMISSION                       (adopted on 17 February   1993)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . 1-2         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-42). . . . . . . . . . . . . . . . . . . . . . .3-10         A.    Particular circumstances of the case            (paras. 19-29) . . . . . . . . . . . . . . . . . . . . 3-6         B.    Relevant domestic law and practice            (paras. 30-42) . . . . . . . . . . . . . . . . . . . .6-10   III.   OPINION OF THE COMMISSION       (paras. 43-77). . . . . . . . . . . . . . . . . . . . . . 11-16         A.    Complaints declared admissible            (para. 43) . . . . . . . . . . . . . . . . . . . . . . .11         B.    Points at issue            (para. 44) . . . . . . . . . . . . . . . . . . . . . . .11         C.    Article 8 of the Convention            (paras. 45-58) . . . . . . . . . . . . . . . . . . . 11-13         D.    Article 6 of the Convention            (paras. 59-72) . . . . . . . . . . . . . . . . . . . 14-15         E.    Article 14 of the Convention            (paras. 73-74) . . . . . . . . . . . . . . . . . . . . .16         F.    Recapitulation            (paras. 75-77) . . . . . . . . . . . . . . . . . . . . .16   APPENDIX I        History of the proceedings . . . . . . . . . . . .17   APPENDIX II       Decision on the admissibility. . . . . . . . . 18-27   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Joseph Keegan, an Irish citizen born in 1964 and resident in Dublin.   He is represented by Brendan Walsh, a solicitor practising in Dublin.   3.     The application is directed against Ireland.   The Government are represented by their Agent, Ms. Emer Kilcullen of the Department of Foreign Affairs.   4.     The case concerns the applicant's complaints that as a natural father he had no standing in the adoption proceedings concerning his child born out of wedlock and that domestic law did not allow a natural father even a defeasible right to be appointed guardian of his child. It raises issues under Articles 6, 8 and 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 1 May 1990 and registered on 2 August 1990.   6.     On 1 October 1990, the Commission decided to communicate the application to the respondent Government for their observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 13 February 1991.   The applicant submitted his written observations in reply on 7 May 1991.   8.     The Commission granted the applicant legal aid on 6 March 1991.   9.     On 10 October 1991, the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   10.    At the hearing, which was held on 13 February 1992, the applicant was represented by Ms. Dervla Browne, Counsel and Mr. Brendan Walsh, Solicitor.   The Government were represented by Ms. Emer Kilcullen as Agent, Mr. Dermot Gleeson, Senior Counsel, Mr. Michael Hanna, Counsel and Mr. John F. Gormley and Mr. Bernard Carey as Advisers.   11.    On 13 February 1992, the Commission declared the application admissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A. WEITZEL                  J.C. SOYER                  Mrs. G.H. THUNE            Sir    Basil HALL            M.     C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ ]   15.    The text of the Report was adopted by the Commission on 17 February 1993 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    The applicant had a steady relationship with V., his girlfriend, for two years.   They co-habited from February 1987 to February 1988.   20.    On 29 September 1988, V., gave birth to a daughter S. of whom the applicant was the natural father.   While the pregnancy had been planned by both the applicant and V., V. had broken off her relationship with the applicant prior to the birth.   The applicant attempted to keep in touch with V. by telephone and letter prior to the birth and finding out the hospital where V. stayed.   He visited her and saw the baby at the hospital when it was one day old.   He again visited V. and the child two weeks later at V.'s parents' home.   21.    On 17 November 1988 V. placed the child for adoption.   By letter dated 22 November 1988, V. informed the applicant of the placement.   22.    The applicant sought legal advice and instituted proceedings to be appointed guardian under Section 6 (a) of the Guardianship of Infants Act 1964 which would have enabled him to apply for custody and to oppose the proposed adoption.   Pursuant to the Adoption Act 1952, an adoption order cannot be made without the consent of the child's mother or the child's guardian or other person having charge or control of the child.   While a married father is a guardian of his children, an unmarried father is not unless so appointed by the Court.   23.    On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody.   24.    On appeal by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father's rights be denied.   The High Court judge held:         "I am of the opinion that in considering the applications both       for custody and guardianship I must have regard to circumstances       as they presently exist and that in considering the welfare of       the child I must take into account the fact that she has been       placed for adoption.   Each application must be taken as part of       a global application and not as a separate and distinct one.   The       test therefore is:              (1) whether the natural father is a fit person to be            appointed guardian, and, if so:              (2) whether there are circumstances involving the welfare            of the child which require that, notwithstanding he is a            fit person, he should not be so appointed.         In the present case, I am of the opinion that he satisfies the       first condition and that unless the welfare of the child is to       be regarded as the sole consideration, he satisfies the second       condition ...         In my opinion, having regard to the purposes of the Status of       Children Act 1987, the rights of the father should not be denied       by considerations of the welfare of the child alone, but only       where - and they do not exist in the present case - there are       good reasons for so doing."   25.    The matter was then referred by the Court by way of case stated to the Supreme Court.   The questions put to the Supreme Court by the High Court judge, Mr. Justice Barron, were:         (1) Was he correct in his opinion as to the manner in which       section 6A of the Guardianship of Infants Act 1964 as inserted       by section 12 of the Status of Children Act 1987 should be       construed?         (2) If not, what is the proper construction of that section and       what other, if any, principles should he have applied or       considered whether in relation to guardianship or custody which       derive either from law or from the provisions of the       Constitution?   26.    On 1 December 1989, the Supreme Court gave its judgment.   It held by a majority that the High Court had erred in its application of the Act in presuming a natural father had a right to be a guardian.   It considered that the Act did not give a natural father a right to be a guardian but only the right to apply to be guardian.   The first and paramount consideration in the exercise of the Court's discretion was the welfare of the child, and the blood link between child and father was merely one of the many relevant factors which may be viewed as relevant to that question.   Chief Justice Finlay held,inter alia, that:         "... although there may be rights of interest or concern arising       from the blood link between the father and the child, no       constitutional right to guardianship in the father of the child       exists.   This conclusion does not, of course, in any way infringe       on such considerations appropriate to the welfare of the child       in different circumstances as may make it desirable for the child       to enjoy the society, protection and guardianship of its father,       even though its father and mother are not married.              The extent and character of the rights which accrue arising       from the relationship of a father to a child to whose mother he       is not married must vary very greatly indeed, depending on the       circumstances of each individual case.              The range of variation would, I am satisfied, extend from       the situation of the father of a child conceived as the result       of a casual intercourse, where the rights might well be so       minimal as practically to be non-existent, to the situation of       a child born as the result of a stable and established       relationship and nurtured at the commencement of his life by his       father and mother in a situation bearing nearly all of the       characteristics of a constitutionally protected family, when the       rights would be very extensive indeed..."         He concluded that:         "... regard should not be had to the objective of satisfying the       wishes and desires of the father to be involved in the       guardianship of and to enjoy the society of his child unless the       Court has first concluded that the quality of welfare which would       probably be achieved for the infant by its present custody which       is with the prospective adoptive parents, as compared with the       quality of welfare which would probably be achieved by custody       with the father is not to an important extent better."   The matter was referred back to the High Court for the case to be decided in light of this interpretation.   27.    The High Court resumed the case.   It heard additional evidence including evidence of a consultant child psychiatrist, who gave his opinion that the child would suffer short-term trauma if moved and would also suffer the long-term effect in later years of being more vulnerable to stress and having possible difficulty in forming trust relationships.   28.    In his judgment of 9 February 1990, Mr. Justice Barron recalled his findings of fact in the case stated to the effect that the applicant wished bona fide to have custody of his child and that he felt the existence of an emotional bond.   He had noted that if the applicant obtained custody the child would be brought up in his parents' home where there was more than adequate accommodation, that the applicant would fulfil a father's role and the child would be well looked after.   If the child remained with the adopters, who had a different social and financial position, he had noted that she would obtain the benefit of a higher standard of living and would be more likely to stay at school longer.   He found also that with the additional passage of time S's attachment to her adoptive parents had grown stronger and the likely traumatic effect of the move greater. Applying the test laid down by the Supreme Court, he concluded:         "I have heard no evidence to cause me to alter my view as to the       differences in the upbringing of a child between the two       competing homes.   These differences spring solely from socio-       economic causes and my view should not be taken into       consideration, certainly where one of the clairmants is a natural       parent.   To do otherwise would be to favour the affluent as       against the less well-off which does not accord with the       constitutional obligation to hold all citizens as human persons       equal before the law.         Accordingly in the present case what I must consider is how to       apply the legal test in the light of the dangers to the       psychological health of the infant which Doctor Byrne foresees       would be the result of a change of custody ...         The result, it seems to me, is this.   If the child remains where       she is, she will if the adoption procedures are completed become       a member of a family recognized by the Constitution and freed       from the danger of psychological trauma.   On the other hand if       she is moved she will not be a member of such a family and in the       short and long term her future is likely to be very different.       The security of knowing herself to be a member of a loving and       caring family would be lost.   If moved, she will I am sure be a       member of a loving and caring unit equivalent to a family in her       eyes.   Nevertheless the security will be lost and there will be       insecurity arising from the several factors which have been       enumerated.         In my view these differences and the danger to her psychological       health are of such an importance that I cannot hold that the       quality of welfare likely to be achieved with the prospective       adopters would not be to an important extent better than that       likely to be achieved by custody with the father.   That being so,       his wish and desire to be involved in the guardianship of and to       enjoy the society of his child is not a factor which I am to take       into account.   In these circumstances, the welfare of the infant       requires her to remain in her present custody.   Accordingly the       application for relief must be refused."   29.    The appeal of the natural mother and prospective adopters was therefore allowed.   B.     Relevant domestic law and practice   Adoption   30.    The principal Irish legislation providing for the adoption of children is the Adoption Act 1952.   Three amending acts were passed to that Act in 1964, 1974 and 1976.   31.    Section 8 of the 1952 Act established the Adoption Board (An Bord Uchtala) to examine and grant applications for the adoption of children.   32.    As regards the requisite consent of the natural parent, the 1952 Act provides in section 14 as follows:         "(1) An adoption order shall not be made without the consent of       every person being the child's mother or guardian or having       charge of or control over the child, unless the Board dispenses       with any such consent in accordance with this section.         (2)   The Board may dispense with the consent of any person if       the Board is satisfied that that person is incapable by reason       of mental infirmity of giving consent or cannot be found.       ...         (6)   A consent may be withdrawn at any time before the making of       an adoption order."   33.    As regards those persons who are entitled to be heard on an application for an adoption order, the 1952 Act provides in section 16 as follows:         "(1) The following persons and no other persons shall be       entitled to be heard on an application for an adoption order -              (a)   the applicants,              (b)   the mother of the child,              (c)   the guardian of the child,              (d)   a person having charge of or control over the child,              (e)   a relative of the child,              (f)   a representative of a registered adoption society            which is or has been at any time concerned with the child,              (g)   a priest or minister of a religion recognised by the            Constitution (or, in the case of any such religion which            has no ministry, an authorised representative of the            religion) where the child or a parent (whether alive or            dead) is claimed to be or to have been of that religion,              (h)   an officer of the Board,              (i)   any other person whom the Board, in its discretion,            decides to hear.         (2)   A person who is entitled to be heard may be represented by       counsel or solicitor.         (3)   The Board may hear the application wholly or partly in       private.         (4)   Where the Board has notice of proceedings pending in any       court of justice in regard to the custody of a child in respect       of whom an application is before the Board, the Board shall make       no order in the matter until the proceedings have been       disposed of."   34.    Provision for limited judicial involvement is contained in section 20 of the Act which provides:         "20. (1) The Board may (and, if so requested by an applicant for       an adoption order, the mother or guardian of the child or any       person having charge of or control over the child, shall, unless       it considers the request frivolous) refer any question of law       arising on an application for an adoption order to the High Court       for determination.         (2) Subject to rules of court, a case stated under this section       may be heard in camera."   Proceedings for custody and guardianship   35.    As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows:         "3.   Where in any proceedings before any court the custody,       guardianship or upbringing of an infant, or the administration       of any property belonging to or held on trust for an infant, or       the application of the income thereof, is in question, the court,       in deciding that question, shall regard the welfare of the infant       as the first and paramount consideration."         "Welfare" in relation to an infant is defined as follows in       section 2 of the said Act:         "'Welfare', in relation to an infant, comprises the religious and       moral, intellectual, physical and social welfare of the infant."   36.    It should be noted that the 1964 Act, in section 2, defined "father" as including a male adopter under an adoption order but this definition did not include the father of a child born out of wedlock.   37.    Section 6 of the 1964 Act provided as follows:         "(1) The father and mother of an infant shall be guardians of       the infant jointly.         (2)   On the death of the father of an infant the mother, if       surviving, shall be guardian of the infant, either alone or       jointly with any guardian appointed by the father or by the       court.         (3)   On the death of the mother of an infant the father, if       surviving, shall be guardian of the infant, either alone or       jointly with any guardian appointed by the mother or by the       court."   38.    The Status of Children Act, 1987 amended the Guardianship of Infants Act, 1964 in the following way:         "11. Section 6 of the Act of 1964 is hereby amended by the       substitution of the following subsection for subsection (4):              '(4)   Where the mother of an infant has not married the            infant's father, she, while living, shall alone be the            guardian of the infant unless there is in force an order            under section 6A (inserted by the Act of 1987) of this Act            or a guardian has otherwise been appointed in accordance            with this Act.'         12.   The Act of 1964 is hereby amended by the insertion after       section 6 of the following section:              '6A (1) Where the father and mother of an infant have not            married each other, the court may on the application of the            father, by order appoint him to be a guardian of the            infant.              (2) ... the appointment by the court under this section of            the father of an infant as his guardian shall not affect            the prior appointment of any person as guardian of the            infant under section 8 (1) of this Act unless the court            otherwise orders ...'"   39.    As regards the powers and duties of guardians, the 1964 Act provides as follows:         "10 (1) Every guardian under this Act shall be a guardian of the       person and of the estate of the infant unless, in the case of a       guardian appointed by deed, will or order of the court, the terms       of his appointment otherwise provide.         (2)   Subject to the terms of any such deed, will or order, a       guardian under this Act              (a) as guardian of the person, shall, as against every            person not being, jointly with him, a guardian of the            person, be entitled to the custody of the infant and shall            be entitled to take proceedings for the restoration of his            custody of the infant against any person who wrongfully            takes away or detains the infant and for the recovery, for            the benefit of the infant, of damages for any injury to or            trespass against the person of the infant;              (b) as guardian of the estate, shall be entitled to the            possession and control of all property, real and personal,            of the infant and shall manage all such property and            receive the rents and profits on behalf and for the benefit            of the infant until the infant attains the age of            twenty-one years or during any shorter period for which he            has been appointed guardian and may take such proceedings            in relation thereto as may by law be brought by any            guardian of the estate of an infant.         (3) The provisions of this section are without prejudice to the       provisions of any other enactment or to any other powers or       duties conferred or imposed by law on parents, guardians or       trustees of the property of infants."   40.    As regards court applications for custody of an infant, the 1964 Act provided as follows:         "11 (1) Any person being a guardian of an infant may apply to the       court for its direction on any question affecting the welfare of       the infant and the court may make such order as it thinks proper.         (2)   The court may by an order under this section              (a) give such directions as it thinks proper regarding the            custody of the infant and the right of access to the infant            of his father or mother ..."   41.    This section of the 1964 Act was amended by the 1987 Act as follows:         "13. Section 11 of the Act of 1964 is hereby amended by the       substitution of the following subsection for subsection (4):              '(4)   In the case of an infant whose father and mother have            not married each other, the right to make an application            under this section regarding the custody of the infant and            the right of access thereto of his father or mother shall            extend to the father who is not a guardian of the infant,            and for this purpose references in this section to the            father or parent of an infant shall be construed as            including him.'"   The Constitution of Ireland   42.    Article 40 of the Constitution of Ireland provides as follows:         "1.   All citizens shall, as human persons, be held equal before       the law.         This shall not be held to mean that the State shall not in its       enactments have due regard to differences of capacity, physical       and moral, and of social function...         3.    1°   The State guarantees in its laws to respect, and, as       far as practicable, by its laws to defend and indicate the       personal rights of the citizen.              2°   The State shall, in particular, by its laws protect as       best it may from unjust attack and, in the case of injustice       done, vindicate the life, person, good name, and property rights       of every citizen ..."   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   43.    The Commission declared admissible the applicant's complaints that the State has failed to respect his family life in that, inter alia, it allows the placement of a child for adoption without the knowledge or consent of the natural father and does not afford a natural father even a defeasible right to be appointed guardian, that he had no standing before the Adoption Board and that he has been discriminated against as a natural father.   B.     Points at issue   44.    The issues to be determined are :   -      whether there has been violation of Article 8 (Art. 8) of the       Convention in that the applicant's daughter was placed for       adoption without his knowledge or consent;   -      whether there has been violation of Article 8 (Art. 8) of the       Convention as regards the determination of the applicant's claim       to guardianship of his child;   -      whether there has been a violation of Article 6 para. 1       (Art. 6-1) of the Convention in that the applicant had no       standing in the adoption procedure;   -      whether the applicant has been discriminated against as a natural       father contrary to Article 14 of the Convention in conjunction       with Article 6 and/or Article 8 (Art. 14+6, 14+8) of the       Convention.   C.     Article 8 (Art. 8) of the Convention   45.    Article 8 (Art. 8) of the Convention provides:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority with       the exercise of this right except such as is in accordance with       the law and is necessary in a democratic society in the interests       of national security, public safety or the economic well-being       of the country, for the prevention of disorder or crime, for the       protection of health or morals, or for the protection of the       rights and freedoms of others."   46.    The Commission has first examined whether the applicant's relationship with his daughter S. falls within the scope of "family life" as protected by the above provision.   47.    The applicant submits that he enjoyed a steady relationship with the child's mother V. and the pregnancy was planned, the applicant having every intention of fulfilling the role of father to the child in a stable family setting.   The Government submit that the applicant and S. have never co-habited and that a mere blood relationship is insufficient in itself to base a claim to the existence of "family life".   48.    The Commission recalls that the existence or not of a "family life" falling within the scope of Article 8 (Art. 8) of the Convention will depend on a number of factors, of which co-habitation is only one, and on the circumstances of each particular case (see eg. No. 12402/86, Dec. 4.3.88, D.R. 55 p. 224).   The application of this principle has been found by the Commission to extend equally to the relationship between natural fathers and their children born out of wedlock (No. 18280/91, Dec. 9.4.92 to be published in DR).   Further, the Commission considers that Article 8 (Art. 8) cannot be interpreted as only protecting "family life" which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock.   Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth.   49.    The Commission notes that in this case the applicant and the child's mother co-habited and that their relationship could not be characterised as casual or fleeting.   The High Court found as fact that the child was planned by both parents and that the applicant felt an emotional bond with the child whom he had seen briefly after the birth at the hospital and in respect of whom he had a bona fide desire for custody.   In light of these factors, the Commission finds that the applicant's links with the child are sufficient to bring the relationship within the scope of Article 8 (Art. 8) of the Convention.   50.    The Commission has therefore examined whether there has been any failure to respect, or interference with, the applicant's family life in regard to his complaints that his daughter was placed for adoption without his knowledge or consent and that he is not afforded as a natural father even a defeasible right to be appointed guardian of his child born out of wedlock.   51.    The Commission considers that, in effect, the applicant is not only arguing that the State should refrain from acting as regards the proposed adoption order but also, and primarily, that it should take steps to ensure adequate recognition and protection of his rights as a natural father in respect of his child born out of wedlock.   Although the essential object of Article 8 (Art. 8) is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see eg. Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31).   In this context, the notion of "respect" is not clear-cut and its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in Contracting States.   52.    In determining whether or not such positive obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual (see eg. Eur. Court H.R. Abdulaziz judgment of 28 May 1985, Series A no. 94 p. 34, para. 67 and the B. v France judgment of 25 March 1992, Series A no. 232-C para. 44).   In striking this balance the aims mentioned in the second paragraph may be of a certain relevance, although this provision refers in terms only to "interferences" with the right protected in the first paragraph ie regarding the negative obligations imposed (Eur. Court H.R., Rees judgment of 17 October 1986, Series A no. 106 p. para. 37).   53.    The Government have submitted that a flexible approach has to be taken in regard to this kind of relationship since the circumstances will vary widely, for example, from a child casually or unintentionally conceived to a child born out of wedlock but into a stable and established relationship bearing nearly all the hallmarks of a constitutionally protected family.   They submit that a natural father is able to apply to the court for guardianship and custody and that his interests are taken into account but are necessarily subject to the paramount importance of the child's welfare.   To grant a natural father automatic guardianship would, in their submission, cause unnecessary testamentary difficulties and inflict anguish on mothers who would be obliged to dispose of the interests of disinterested or even antipathetic fathers.   54.    The Commission notes the concern of the Government that in matters concerning children the overriding criterion should be their welfare.   It also acknowledges that the relationship between a natural father and a child born out of wedlock will differ in nature and degree.   The Commission finds however that under Irish law, the natural father, whose relationship with the child born out of wedlock falls within the scope of Article 8 para. 1 (Art. 8-1) of the Convention, is placed at a considerable disadvantage when attempting to obtain guardianship or custody of a child whom the mother has placed for adoption.   Since his prior consent or knowledge is not required, the child may be placed immediately with prospective adopters with whom he or she will begin to form bonds with the result that by the time the application by the natural father is determined by the courts the child will, if the placement has been successful, be secure and established in the adoptive home.   55.    Further, the test applied by the Supreme Court as regards the weight to be attached to the natural father's right to guardianship (see para. 26 above) in effect places the burden on the natural father of establishing that in his care the child would receive a better quality of welfare.   This poses a formidable, if not insuperable obstacle to a successful application, where, as in the present case, though the natural father will be able to care materially and emotionally for a child, it would inevitably cause the child some psychological trauma to be moved from the adopters'.   56.    The Commission has found nothing in the Government's submissions to indicate that a greater recognition and protection of the interests of a natural father whose relationship with his child born out of wedlock falls within the scope of Article 8 (Art. 8) must necessarily conflict with the primary aim of pursuing the welfare of the child concerned.   57.    Consequently, the Commission finds that under Irish domestic law the applicant has not been given sufficient recognition to and protection of his relationship with his daughter S.   This situation is not compatible with the respect due to the applicant's family life under Article 8 (Art. 8) of the Convention and there has accordingly been a violation of Article 8 (Art. 8) of the Convention.         Conclusion   58.    The Commission concludes, unanimously, that there has been a violation of Article 8 (Art. 8) of the Convention.   D.     Article 6 para. 1 (Art. 6-1) of the Convention   59.    This provision, as relevant, states :         "1.   In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law..."   a.     Applicability of Article 6 para. 1 (Art. 6-