Dr. Geoffrey Shannon:

The Law Society welcomes the opportunity to provide observations on the Bill. It represents the practising profession and reflects some issues arising in that context. The children and family relationships Bill represents the most significant change in family law in a generation and attempts to reflect the social reality of contemporary family life in Ireland. Until recent decades, family life in Ireland has been synonymous with marriage. However, increasing recognition of marriage breakdown, changes in relationship formation patterns, economic change and the influences of international law have all contributed to the increasing fluidity and diversification of family forms. It is no longer tenable to assert that Irish law should continue to recognise only one type of family. The constitutional preference for families based on marriage remains intact, but it is essential to provide legal certainty for all families, whatever their official status. The new framework that will be implemented following the passage of the Bill will not only radically overhaul many existing rules, it will create new rights for parents, both biological and social, and, most critically, for children. As a result, it represents an important milestone on the road to recognition of children as rights holders.

The Law Society’s substantive submission on the Bill was submitted last week to the Joint Committee on Justice, Defence and Equality, drawing from the experience and expertise of its family law practitioners. It is hoped that it will assist the committee, as policy makers, and the Department in its consideration of the Bill.

The Law Society has made one of its most significant submissions to date to the Department on the issue of the broader structural reform of our family courts. We feel that any reform must be viewed in the context of broader structural reform. We understand the Minister is actively engaged in bringing forward proposals in this area. An explicit requirement for the courts to have regard to the best interests of the child when making decisions affecting them. That this is included in the Bill is welcome.

Head 32(1) requires that the best interests of the child be taken as the paramount consideration in proceedings concerning guardianship, custody, access or the administration of property or on the application of income thereto. It is submitted that consideration should be given as to whether the best interests should be required to be paramount in all proceedings concerning children and not merely those referred to in the Bill.

The provisions contained in the Bill relating to the right of the child to be heard and the right of the child to express himself or herself are to be welcomed in their desire to give a voice to the children the subject of judicial proceedings. If the Bill is enacted in its present form, a person with no biological connection to a child, albeit in an intimate and committed relationship with the child’s mother, as referred to at head 10(3) and (5) and head 12(1) and (3) will be the parent of the child if they consent whereas the biological but unmarried father of the child will only be presumed to be the child’s father under head 6 if he has cohabited with the child’s mother for at least 12 consecutive months prior to the child’s birth and, where applicable, the cohabitation ended less than ten months before the child’s birth or the circumstances at head 6(3)(b) or (c) apply.

Therefore, it is arguably easier for a person with no biological connection to achieve the status of a parent than it is for the unmarried biological father to do so. Consideration should be given as to whether heads 10 and 12 of the Bill should be expanded upon to include a temporal requirement of cohabitation similar to that set out at head 6 for the unmarried biological father of a child. Conversely, consideration may be given as to whether head 6 should be brought into line with heads 10 and 12 and the cohabitation requirement for unmarried biological fathers be reduced. Either way it is submitted that the 12 month cohabitation period for unmarried fathers should be reduced so as to facilitate the recognition of family ties. The Law Society is of the view that the provision in its current form may be vulnerable to challenge under Article 8 of the European Convention on Human Rights, given the approach of the court to the nature of the family.

It is submitted that further consideration should be given as to whether children should have the right to information pertaining to their donor.

In the United Kingdom, a system has been introduced by which a child conceived after 2005, is entitled on reaching the age of 16, to apply to the Human Fertilisation and Embryology Authority and receive the non-identifying information about the donor. Then at age 18, he or she can apply to receive identifying information. Access to donor material can be important for the person’s development and health. Clearly it could be beneficial for a person born as a result of human reproduction to have access to their genetic information.

The use of the terms “guardianship”, “custody” and “access” should be reviewed. The report of the Law Reform Commission on the legal aspects of family relationships recommends that the terms “parental responsibility”, “day-to-day care” and “contact” should replace the older terms. The concepts of parental responsibility and day-to-day care more adequately reflect the reality of children and families in Ireland today, in that they encompass more broadly the various compositions of families, such as blended families, where, for example, one parent, who may not be living with the other parent and the child, has parental responsibility, but the partner of the parent living with the child may be exercising day-to-day care of the child.

A significant reform is provided in head 39(4)(b), which requires that before a new guardian is appointed in respect of a child, if that child is over 12, he or she too must consent. This provision is worthy of further consideration. The intention behind the provision is to be welcomed, in that it provides for a significant level of participation by children in a vitally important application affecting them. However, the specific age criterion is unusual, as our international obligations are to ensure participation in line with the child’s age and maturity rather than relying on a chronological age. This could be dealt with by amending the provision so that it reflects the language of Article 12 of the convention on the rights of the child, and including a rebuttable presumption that children over 12 are capable of full participation. This would also cover situations where the child who is over 12 is not capable of exercising participation rights through disability, even with significant support structures. Additionally, the requirement of consent rather than participation may be problematic.

Empirical research in several jurisdictions has consistently highlighted that children require a voice, but not a choice. This research indicates that better outcomes for children are likely to result where children are relieved of the burden of having to choose the outcome, but at the same time are integrated into the decision making process by appropriate means, including by judicial interview. Consideration should be given to revisiting this provision.