Ms Saoirse Brady:

As many members will know, the Children's Rights Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland by campaigning for the full implementation of the UN Convention on the Rights of the Child, UNCRC. Many of our members are present today. The committee either has heard from them or will hear from them. We thank them for their contributions to our fuller submission, which we have already circulated. We welcome the publication of the heads of the Bill as they represent the most significant reform to family law for a generation. We welcome the opportunity to be present to make our observations.
We acknowledge the work of the Minister for Justice and Equality and his departmental officials in producing this important draft legislation, which, in the main, is very child-focused. The legislation puts children at the heart of family law reform and it will address the current discrimination faced by children in non-marital families. We need only consider the results of the 2011 census to realise the wide range of different family types and parental relationships in the State today. This legislation will bring about reforms for thousands of children and their families.
We welcome the inclusion of three key children's rights issues in the proposed legislation. These are the best interests of the child, as mentioned already, the voice of the child in decision-making, and protecting the child's right to family life. The legislation would provide much-needed clarity for children and families in these areas. We have made some recommendations that we hope the committee will consider and that will improve and strengthen the legislation. We feel, however, that there is one big gap in the legislation as it currently stands from a children's rights perspective. I refer to the right to identity in cases of assisted human reproduction and surrogacy. The inclusion of the general principle of the best interests of the child is a major milestone and it reflects the rights enshrined in the UNCRC. This is the first time the principle has been defined in domestic legislation in such a comprehensive manner. While it is included in the Child and Family Agency Act, it is set out very clearly in the proposed legislation. The way it is set out in head 32 clearly complies with the standards laid out in the UNCRC, which states that the best interests of the child should be the paramount or only consideration in important decisions on adoption, guardianship, access and protection cases. For this reason, the alliance strongly recommends that the standard included in head 32(1) be retained.
The alliance believes the principle of the best interests of the child must extend to all decisions made on children's care and well-being, not only to decisions of the court on guardianship, custody and access. In line with the convention, the best interests of the child should be the primary consideration in all decisions affecting a child, regardless of whether they are made by the court, an administrative body or otherwise.
The committee heard from One Family, which advocated the use of child contact centres. We support this call in respect of determining how the child's best interests could be protected and respected within the legislation.
The right of all children to be heard and taken seriously constitutes one of the fundamental values of the convention under Article 12. In the proposed legislation, the voice of the child is presented as only one of the factors to be considered when assessing what course of action is in the best interest of the child in guardianship, access or custody proceedings. We warmly welcome the fact that the voice of the child is referred to in the heads of the Bill but, in order to comply with Article 12 of the convention, this should be a stand-alone provision rather than one factor in a long list. The views of the child should be sought by the decision-maker and should be properly considered. This does not mean the child gets to decide what is best for him or her; instead, it means he or she gets to participate in and contribute to the decision-making process properly.
The proposed heads refer to the age and capacity of a child but it is not clear who will decide when a child is capable of forming views. As outlined in the guidance provided by the UN Committee on the Rights of the Child, it is important to point out that being capable of forming views and being capable of expressing them are two entirely different phenomena. The legislation should not contain an age limit since the weight to be given to the views of the child must be considered in accordance with both age and maturity. Each case must be examined individually.
Part 7 of the general scheme of the children and family relationships Bill 2014 seeks to address a number of the gaps in protection experienced by the increasing number of children who are being cared for by step-parents, civil partners and others in loco parentis. This is a welcome development that will extend the right to apply to become a guardian to step-parents and grandparents, for example, and create a legal link between the child and the person caring for him or her on a day-to-day basis.
We welcome the extension of automatic guardianship to unmarried fathers who are cohabiting with the mothers of their children. However, as Treoir has pointed out, automatic guardianship will not extend to unmarried fathers who do not live with or have never lived with the mothers of their children. We urge caution in respect of how automatic guardianship can be extended to non-cohabiting fathers. Obviously, we support the committee's examination of this, but it should bear in mind cases in which the mother has been a victim of domestic violence or a woman has become pregnant through rape. When balancing the rights of unmarried fathers who are not living with the mother, and considering circumstances in which children have been born from rape, proposals by the committee should not endanger the children and mothers in any way or interfere with their right to privacy. The rights of the unmarried father should be balanced with what would be in the best interest of the child.
The big gap we see in the legislation concerns the fact that the right to identity is not provided for anywhere within it. The proposals in the Bill aim to provide much-needed legal clarity on parentage for children born through assisted human reproduction. However, as I mentioned, the current heads do not provide any clarity on the right to identity enshrined in Article 7 of the UN convention, which concerns the right to knowledge. This might be an issue where an anonymous donor has provided genetic material. The 2005 report of the Commission on Assisted Human Reproduction, set up by the Department of Health, recommended that upon reaching the age of maturity, a child born through the use of donated genetic material should be entitled to identify the donors. The Bill must make provision for the identity rights of children in these cases, and their right to identity should be vindicated as a matter of priority. We regard the gap in this regard as the key gap in the proposed legislation that must be addressed. I thank the committee for the opportunity to make a presentation today.