Brian Walsh (Galway West, Fine Gael)

I thank the Ceann Comhairle's office for allowing me to raise this matter, which is of some importance. I acknowledge the presence of the Minister, Deputy Shatter, and thank him for coming to the House to speak about the legal status afforded to unmarried fathers in Irish law and the right of such people to the guardianship of their children. Married parents are correctly considered joint guardians at present. They share equal rights in respect of their sons and daughters. In the case of a child born outside of marriage to unmarried parents, however, only the mother has an automatic right of guardianship. In such circumstances, the law considers the father to be a stranger to the child, in effect. It seems that under Irish law, a father's right of guardianship derives from his being the husband of the mother of the child, rather than his being the father of the child.

The human impact of this situation on the growing number of non-marital families in Ireland cannot be under-estimated. Children are being deprived of their right to know and be cared for by both parents. Fathers are distraught at being denied the joy of playing an active part in the upbringing of their children. This is having a devastating effect on people's lives. I know of genuine and decent fathers who are suffering from severe bouts of depression as a result of this law. I suggest it is contributing to the growing incidence of suicide in society, which was the subject of extensive statements in this House in recent weeks. Like other Deputies, I have been contacted by grandparents who are concerned about their son's well-being and mental health. Equally, I have been contacted by people who are devastated because they have little or no access to their grandchildren. This divisive and saddening injustice is the result of a failure to legislate for the changing nature of the Irish family.

We live in a time of great social change. An increasing number of couples are living together in non-marital relationships. We now have divorce and civil partnerships. In 1996, the Constitutional Review Group noted that the Constitution - our founding document - was "clearly drafted with one family in mind, namely, the family based on marriage". The European Court of Human Rights has constantly reinforced the fact that families not based on marriage are families nonetheless. Children born in such circumstances should have the right to benefit from the support and affection of both parents, notwithstanding their marital status. As the Constitution was drafted in a different time, it reflects a different reality and social outlook. Just 3% of children were born outside of marriage in 1937, whereas today one in every three births is to unmarried parents.

The unmarried father is not part of the family within its meaning under Article 41 of the Constitution. He is not a parent within the meaning of Article 42. He has no personal right in relation to his child under Article 40.3 of the Constitution. Under our current laws, the unmarried father is a legal pariah, in effect. He is ostracised and ignored, voiceless and invisible. This stems from our Constitution, which professes to cherish the notions of family and equality but in many cases is destroying the very thing it purports to protect, apparently with the paramount welfare of the child at heart. We are all aware of tragic circumstances that have conspired to deprive a child of its father or deny a father the unique joy of watching his children grow up. We can do little to prevent such tragic instances, sadly, but we can do something to ensure fathers and children do not suffer in each other's absence as the result of an antiquated Constitution and inadequate legislation.

The right of every child to know and be cared for by both of his or her parents, regardless of whether they are living together, should be enshrined in the Constitution. An explicit provision should be inserted in the Constitution to guarantee equal rights to both the mother and the father, in accordance with Article 7 of the UN Convention on the Rights of the Child. That would serve the best interests of the child. The extensive research that has been carried out in this area was reflected in the Law Reform Commission report on the legal aspects of family relationships, which was published last December. With this in mind, I ask the Minister if he intends to address the issues I have raised. Will it be done as part of the Government's legislative programme? I bow to the Minister's superior knowledge and wisdom on this subject. I respectfully suggest he take on board many of the recommendations in the Law Reform Commission report.

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