Dermot Ahern (Louth, Fianna Fail)

As I said at the outset of this Second Stage debate, I and the Government were obliged to deal with the balance required in our Constitution, namely, the balance between the special recognition of marriage as laid down in Article 41, on the one hand, which has been enunciated in many Supreme Court and court decisions regarding the status of marriage and the actual concept of marriage, particularly in its heterosexual guise and, on the other hand, the balance Article 40.1 of the Constitution which refers to equality. Again, this must be balanced with Article 41.

With regard to the many contributors who said that amendments would be required to the legislation, in its drafting we were obliged to take that balance very much into account. Concerning amendments that the Government or the Opposition might bring forward we must maintain that balance.

I appreciate the cross-party support afforded to the Bill. However, many Deputies on the opposite side of the House made political points about what their parties have done in respect of this issue. I could not put it any better than Deputy O'Rourke who stated that the entire ethos of our party is republicanism. In the true spirit of republicanism, we brought forward this legislation. We have a good record in respect of the issue of equality. All of the equality infrastructure that has been put in place in the State during the past 20 years was brought forward by Fianna Fáil-led Governments. All of the legislation relating to equality which is currently on the Statute Book was brought forward by those Governments. One need only consider our record on this issue and Deputies on all sides recognised the work done by our current EU Commissioner when she held my position. Thankfully, my party and I are following our traditional line in this regard.

While Deputies supported the general measures relating to maintenance, ownership of the family home, pensions and succession, some of the issues to which they referred are not contemplated in the Bill. Several of them indicated the difficulties they have with regard to omissions from the Bill and a number pointed out the absence of provisions relating to children in the context of civil partnerships. In formulating the civil registration scheme for same-sex partnerships, the Government was mindful of the implications for children, be they the children of one or both partners. An extensive body of law relating to the welfare of children - in the context of guardianship, maintenance, access, custody - is already in place. Different persons, regardless of whether they are married, are obliged to deal with many of the issues to which I refer.

It has been suggested that the Bill is silent in respect of children. As already stated, however, there is already a wide-ranging body of law relating to children's rights in place and this will be available to the children of same-sex couples, regardless of whether the legislation is passed.

It has also been suggested that the Bill should make express provision for the rights of same-sex partners in respect of children. In the context of any debate on rights relating to children, I would refer Deputies to the decision of the Supreme Court on 10 December last in the case of J. McD. v. P. L. and B. M. The court made it clear that in the first instance "The child's best interests are the first and paramount consideration in any case to do with a child's future under section 3 of the Guardianship of Infants Act 1964." The court also held that:

... the mere fact that the law could be said to be silent as regards a specific situation does not necessarily mean that it is unaffected by the law or the Constitution. Silence of the law may speak volumes for the legal status to be accorded or not to be accorded to a particular subject matter or situation.

In view of the legal complexity of legal relationships between children and their parents, a comprehensive review of the law in this area by the Law Reform Commission is under way. This should, in due course, help to inform policy decisions on rights in general in respect of children, partners and others. The commission published a consultation paper in September 2009 on the legal aspects of family relationships and has invited submissions from interested parties on its provisional recommendations. The final report, which will contain the commission's recommendations, is expected later this year. This report will deal with the issue of children in the context of different family relationships not least in respect of separated fathers and how they are dealt with in terms of custody of their children, etc.

It was never intended that the Bill should develop principles that would inevitably have wider implications than those relating to same-sex partners. In reply to Deputy Shatter, I wish to state that the Minister for Health and Children intends to bring to Government later in the year proposals relating to legislation to govern the area of assisted human reproduction and related practices.

Deputies Charles Flanagan, Catherine Byrne and Barrett referred to the omission of reference in the Bill to siblings or other persons who live together and whose relationships could benefit from the regulation of what should happen in the event of disputes or that of hardship resulting from their being in a position of vulnerability. As with the position relating to children, I do not believe it would be appropriate to use the Bill for the purpose of establishing particular rights and obligations for a wider range of persons.

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