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

With due respect, to say that makes no sense whatsoever. I am sorry to phrase it that way. If the Guardianship of Infants Act 1964 remained exactly as it was with no amendments, there would still be a need for us to finally have a definition of these concepts. They are defined worldwide in legislation dealing with the custody, care and upbringing of children. In my view, the entire Act should have been repealed. On occasion I have had to wrestle with the approach of the Attorney General's office to particular pieces of legislation. The drafting of the Bill would have been simpler if the Minister had not travelled the route she has taken, yet even travelling that route, there is no logic in the suggestion that these concepts should remain undefined.

The concept of access, as the courts have generally perceived it, has largely been applicable to the relationship between a child and parents. This legislation does something very important in recognising the role that relations can play in a child's life. There is a need for us to provide a modern definition of access, as opposed to allowing it to remain a concept that is referenced in court judgments in various formats and differing half-definitions. Some judges have tried to define access as something that is the right of a child. It makes no sense that in 2015 we are enacting a piece of legislation of this nature while the basic concepts of access and custody are not defined.

There also is a need to define them because there is enormous confusion on the part of parents as to what the concept of custody means. I am going to talk about guardianship later on. Once one parent concedes custody to the other in a court or mediation context, perhaps in circumstances in which it may not be practical for him or her to look after the child on a day-to-day basis, he or she is conceding a whole range of other things on which it is important to be consulted, such as the child's health, education, cultural engagement or religious upbringing. The parent who obtains custody believes that, because he or she has custody, he or she can exclude the other parent from engagement on such issues. In order to reduce the level of family embattlement that takes place when relationships break down, there is a great advantage in having a clear definition of custody, such that people understand it to mean that the child is physically being cared for by one parent, without meaning that that parent should not consult with the other parent, who has a good relationship with the child, on some of the fundamental decisions to be made about the child's life.

One of the difficulties have I found as a practising lawyer, particularly in the District Court, is that judges often do not themselves distinguish between guardianship and custody, and are confused about it. To get over the sense some parents have that they are to be disengaged from their child's life entirely when the other parent is granted custody, there are occasions when judges make orders of joint custody that do not involve the child living part of the time with one parent and part of the time with the other. They make an order of joint custody and detail that the child should primarily reside with one of the parents. That is just a custody order. Even the Judiciary can be confused as to what on earth custody means, particularly at the lower levels. I have seen it on multiple occasions in 30 years of practice as a family lawyer. It is extraordinary how this is a continuing and prevailing difficulty.

I ask the Minister to reconsider this on Report Stage, because it makes no sense. I do not know what advice could be legitimately given to suggest, even given the somewhat complex structure that has now been adopted, that it would do some damage to include the definitions I have suggested or some reasonable variant of them. That is an issue on which the Attorney General's office should be further engaged. I presume we are stuck with the structure that is here, but I would dearly love to know why we are preserving a piece of legislation that contains some provisions - I do not have the 1964 Act with me, but from memory I think they are in Part III - that have been redundant for decades. Why are we not providing a modern legal framework in its entirety? We should have one piece of legislation that people can go to - namely, the legislation dealing with guardianship, custody of and access to children - rather than having to stray through myriad different pieces of legislation, with sections of one Act amending another Act that amends another Act. It is bad legislative practice and it is also unfair to assume that when we legislate this way, everyone who practises in the area, including the Judiciary, will necessarily find their way through the legislative maze that is created.