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

This is a good and important section. I want to return to the issue of guardianship as well. It is important that we have an extended description of the obligations - perhaps "responsibilities" is a better word - and rights of guardians. I will not detain the committee by reciting what was in head 36 of the draft Bill that this committee considered last year. That particular provision reflected global best practice in jurisdictions that have the most up-to-date legislation dealing with children.

It is particularly important in the context of relationships that have broken down to specify the rights and obligations of parents and to ensure the custodial parent involves the other parent in fundamental issues relating to children. I made a point in the Dáil about what happens in a small number of instances when relationships break down. This does not apply to the majority of parents who behave responsibly when relationships break down by trying to protect their children from difficulties. Most custodial parents try to maintain a good relationship with the non-custodial parent where it is in the best interests of the children to do so, but I am afraid that some parents do not behave in this manner. Some parents go to war with each other. Mothers create problems for fathers, or fathers create problems for mothers. Some parents simply try to destroy the relationship between the child and the estranged parent.

The provision in the draft Bill to which I have referred was an important one. It stated:

In exercising or continuing to exercise the duties, powers, rights and responsibilities of a guardian in relation to a child, a guardian of the child shall act jointly (in particular by consulting wherever practicable with the aim of securing agreement) with any other guardian of the child.

Such a provision has not been included in the Bill before the committee. The draft version of the Bill further provided:

Except where otherwise stated by way of court order, each guardian is entitled – (a) to be informed of and consulted about and to make all significant decisions affecting the child in the exercise of the powers, rights and responsibilities of guardianship derived in subhead (5), and

(b) to have sufficient contact with the child to exercise those powers, rights and responsibilities.

Under the draft Bill, each guardian would have a responsibility to "nurture the child’s physical, psychological, emotional, intellectual, social and other personal development " and to "ensure the child is properly maintained and supported and is provided with necessary medical care, food, clothing, accommodation and access to appropriate education".

A range of matters were detailed in head 36 and the subheads that were published. I emphasise that these measures were not reinventing the wheel. They were based on best practice in other jurisdictions. It was considered not only that they improved the law and provided clarity, but also that they helped to create an ethos in which the courts would encourage co-operation between estranged parents in the interests of children. Those provisions represent a statutory roadmap, to some extent, in so far as they could very well be included in a very reasonable leaflet indicating to estranged parents that each of them has particular rights and responsibilities and that they need to co-operate in the best interests of their children by approaching matters as detailed. I presume I will be told that these provisions are not being included in this legislation because they were not in the 1964 Act. I am afraid that does not make any sense. If we were simply trying to keep the 1964 Act in place, some of the other changes that we are happily implementing would not be part of the legislation.

I am raising this not simply in my capacity as a politician but as someone who practised in the area of family law for over 30 years. I used to spend large parts of my time trying to persuade people who wanted to go to war with each other to deal with each other in a more civilised way in the best interests of their children. There were occasions when it was extraordinarily difficult for them to gain that insight. This legislation envisages that parents who are not co-operating might avail of parental counselling services or certain other support services. In that context, it would be extremely useful for the obligations of parents, as well as their rights, to be set out in a straightforward, easily understandable linguistic framework that would be part and parcel of this legislation.