Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

What was striking about the Second Stage debate was that people spoke about automatic guardianship involving the father, and almost everybody who talked about it also spoke about exceptional circumstances in which a mother could find herself with respect to the father's role. For example, people mentioned cases of domestic violence and many called for exceptions to be made if the pregnancy was a result of rape. A variety of circumstances were cited by Deputies who spoke on the Bill. Many family law practitioners would have a particular concern about the issue. Nevertheless, it is a very real area for consideration. The approach we have taken in the Bill is to link the automatic right to cohabitation for a specific period. It is the first time this is being dealt with in legislation.

For non-married fathers who go to court seeking guardianship, the vast majority of such requests are granted but a percentage are not granted where the courts do not consider it in the best interests of the child to have the father as a guardian. That is because conferring guardianship has specific effects. If a father is not on the scene or involved, his failure to exercise guardianship responsibilities has real consequences for the child and mother. The mother would have to apply to court to dispense with the consent of the father to the issue of a passport, with related implications. It would be extremely difficult to place the child for adoption or for the mother to adopt the child jointly with a new partner if the father did not consent to the adoption. However, all of these issues would in such a context be very carefully considered with respect to the best interests of the child. Other considerations would also apply.

I will go through some other concerns in detail. If a mother decided to relocate with a child, her legal position and authority to do so would be unclear as a guardian has the right of custody within the meaning of the Hague Convention on international child abduction or the Brussels II bis regulation. These are very vital protections where both parents are involved with the child's life, but they could be problematic for a mother and child if a father with no involvement with the child had an effective veto. These are real and potentially serious implications of automatic guardianship, and that is not to speak of some of the other issues I discussed.

I am therefore proposing an amendment. There is a real problem in that many fathers, especially young fathers, are not aware that they can sign a statutory declaration in front of a peace commissioner or a commissioner for oaths that would give them guardianship rights. There is a real information deficit with this issue, and that is a clear opinion of all the non-governmental organisations working in the area and speaking about it. A number of Deputies have raised the point and argued that it should be easier and more straightforward for fathers in that position to know their rights and be able to exercise and vindicate those rights through a statutory declaration. That relates to cases where a mother does not object, because where there is conflict, there would be a court hearing.

Perhaps I can give a further indication of the Report Stage amendment I intend to introduce, as it may be helpful to the discussion. I have gone into some detail already. The purpose of this Report Stage amendment relating to guardianship is to enable registers to witness a statutory declaration by which the father can be appointed a guardian at a time when a couple is registering a child's birth or within a short period afterwards. Treoir and a number of other organisations made submissions in this regard. This statutory declaration mechanism is easy, straightforward and inexpensive. The principal difficulty for many non-marital parents is that most are not aware of the existence of this mechanism. This amendment would ensure that a couple would have necessary information and can make an informed choice on whether the father should be a guardian. Subject to legal advice, it is possible that the Report Stage amendment will amend the Civil Registration Act 2004.

I also plan, and will say so on Report Stage, that I will review this issue in two years time, at which time it will be possible to consider the impact of the proposals in this Bill to make it easier for non-marital fathers to complete a statutory declaration. We can see what the result of that has been and whether we are seeing the kind of increases we would expect to see. Many people who have looked at this area feel that the information and the access to the statutory declaration is one of the big barriers. I believe that with the combination of initiatives in this Bill, we are moving forward substantially in regard to the rights of non-marital fathers.