Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I want to raise some matters. This seems to be the first section dealing with the Guardianship of Infants Act 1964 in the Bill and it seems to also be partially a definitions section. I want to just repeat something that I said in the Dáil on Second Stage. I believe it is good legislative practice that we try to keep what is a fairly complex area as legislatively clear as possible. I really do not understand why the Bill does not simply repeal all of the relevant provisions in the Guardianship of Infants Act 1964 and the Status of Children Act 1987 that relate to guardianship and custody of children and do what the original draft Bill did, which was incorporate all relevant provisions in the one piece of legislation. I think that, when we are dealing with section 40, we see how additional complexities arise as a consequence of that because of the multiple amendments having to be made to the 1964 Act. I still do not understand why that change has been effected. The only reason I heard mentioned was in case we left something important out that was in the 1964 Act - if there is something important in the 1964 Act that needs to be retained, it could have all been retained. If we adopted this approach to legislation, which is epitomised by section 40, we would never have enacted the Adoption Act 2010 and would have just done a series of amendments to all of the preceding adoption legislation. We would not have enacted the Freedom of Information Act 2014, which replaces all of the previous legislation in that area. I just do not understand why we have made this more complex than it needs be.

In relation to the specifics of the section, in so far as it is amending the 1964 Act, there are, and have been since 1964, definition deficiencies in the 1964 Act where concepts are not adequately defined. The Law Reform Commission, when it was looking at this area of the law, recommended certain changes. A part of the changes it recommended was a change of terminology so that we replicated here the terminology that they have adopted in England. That is not appropriate and certainly was not appropriate after the constitutional referendum relating to children. It is right that we retain the terminology we have, but the issues in particular that were dealt with in some of the draft legislation which are excluded - I do not understand why they are excluded - are important definitions of concepts people think they are familiar with but which are normally defined in similar legislation in nearly all the other common law jurisdictions with which I am familiar. I want to raise these particular definitions and suggest they be incorporated by the Minister on Report Stage.

The first is the concept of access. We were discussing access previously. There was a definition of "access" in the measure that this committee previously looked at, which said, "'access', in relation to a child, includes the right of the child to maintain personal relations and contact with a parent and relatives or other person with a bona fide interest in the child on a regular basis except where such access is not in the best interests of the child". What that did by way of a definition which could be incorporated into section 40 as an amendment of the 1964 Act was make it clear that access was the right of a child as opposed to simply the privilege of a parent or the entitlement or right of a parent. There have been court decisions which have described "access" as the right of a child. The definition recognised that the access or contact that a child had not only included the right of the child to maintain personal relations and contact with the parent, but also with relations. I think that is important because, when relationships collapse, all of us as public representatives learn of circumstances where, in the marital war or parental war that follows people's relationships collapsing, important people with whom a child has contact are often cut off, like grandparents, aunts, uncles, cousins and others within the family. Later provisions of the legislation allow for relations to make applications for access, but there is a need to define what we mean by "access". That is a modern definition which reflects the approach taken in a series of other countries.

We also do not have a definition of "custody". Everyone thinks he or she knows what the concept of custody means. One of the great areas of difficulty when relationships break down is, if one parent is awarded custody, the other parent thinks he or she has no further involvement or engagement with his or her children. While the concepts of custody and guardianship have been used for some centuries, they are not adequately defined in Irish law. There is a need to define the concept of custody and be clear on what we mean by it. We reference it in the legislation; it is not defined. The definition that was previously before this committee stated as follows: "'custody', in relation to a child, includes the provision of day-to-day care of a child, to protect and supervise the child and the right to provide a residence for the child and may include providing such care for one or more specified days or parts of days". On some occasions, parents have joint custody. They share the custody of a child and a child can live with one parent for a period of the week and the other parent for another period of the week. We do not have a definition. Unless I am missing something, it seems that the definition has been dropped out of the legislation. Again, I do not understand why.

Turning to the final issue that I want to mention in this context, I cannot think of where else I can reference it other than in the conversation that we might have on section 41, so if the Chairman wants to pull me up when I-----