Conor Lenihan (Dublin South West, Fianna Fail)

In all family law proceedings relating to the upbringing of a child, the court must always regard the child's welfare as the first and paramount consideration. Where appropriate and practicable, the court will take into account also the child's wishes in the matter having regard to the age and understanding of the child. In addition, the law now places an emphasis in terms of recognising the rights of the child to the society of both of his or her parent. Section 11D of the 1964 Act, inserted by the Children Act 1997, obliges the court in proceedings relating to the welfare of a child to consider whether the child's best interests would be served by maintaining personal relations and direct and regular contact with both his or her father and mother.

Under the law as it stands, married parents living together are joint guardians and custodians of their child. If they separate, the custody is normally with the parent with whom the child is intended to reside, but the other parent still remains a guardian.

An unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act 1964, as inserted by section 4 of the Children Act 1997, appointing the father as a guardian of his child and without having to go to court.

The 1997 Act also provides for an emphasis on counselling and mediation as alternatives to court proceedings concerning the custody of and access to children. It encourages couples who are in dispute to think in terms of agreeing to the custody of and access to their children without the need for court interventions. Before instituting proceedings for guardianship, custody or access, a solicitor must discuss with the parent the possibility of engaging in counselling and mediation to assist in effecting an agreement between the parties. The court may adjourn any proceedings for the purpose of enabling attempts to be made by the parties to reach agreement, with or without the assistance of a third party, on some or all of the issues in dispute. An agreement in writing between parties relating to custody, access or maintenance can be made a rule of court and thus become enforceable in the same way as if it were a court order. Mediation on the various issues is by its nature a voluntary act to be undertaken by two persons who are in dispute.

The Family Support Agency, operating under the aegis of the Department of Social and Family Affairs, following the enactment of the Family Support Agency Act 2001, brings together programmes designed to support ongoing parenting relationships for children. Its functions include the provision of a family mediation service, both directly or through support for others providing these services, and the administering of grants for such purposes.

As regards the hearing of family law cases in general, the in camera rule has recently been relaxed in that the law now allows certain classes of persons to attend family law cases to draw up and publish reports, subject to certain safeguards including a requirement that the parties to a case or any relevant child would not be identifiable.

The Minister is aware of the concerns of fathers in the area of family law. Operation of the law in this area is being kept under review in his Department.

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