Willie O'Dea (Limerick City, Fianna Fail) | Oireachtas source

It is true to say that occasionally every Government does something good on which we can all agree - something which is intrinsically correct, very necessary and, if anything, overdue. This Bill, in principle, falls into that category and, therefore, we will not oppose it. The Civil Registration Act 2004 can be described as landmark legislation but despite that, it did not deal with a number of issues.

A number of issues came to light as a result of the operation of the 2004 Act and, as the Minister of State noted in his opening statement, significant changes have occurred in Irish society over the past ten years. I understand the Bill is designed to meet those changes. I pay tribute to the various groups which campaigned for change and congratulate those Members who have pursued legislative initiatives in this area which have been taken on board by the Government. I also thank the General Register Office for its helpful suggestions, many of which are incorporated in the legislation before us.

The principal change introduced by the Bill is compulsory registration of the father's name on a birth certificate when a child is born out of wedlock. Every citizen is entitled to the fullest information about his or her identity. It is a fundamental human right. It is extraordinary that we are only providing for that in 2014, although I admit that previous Administrations did not cover themselves in glory in this regard. This Administration is now three and a half years down the road but, late though it may be, we welcome this overdue change. There are many reasons for making the change, not least of which are medical reasons. As the House will be aware, many conditions are genetic. I have no doubt that many people over the years have received incorrect medical treatment, and may even have died, as a result of the lack of knowledge about their fathers' genetic histories. There are also practical reasons for the change. If the father of a child born out of wedlock seeks to claim official recognition where the mother is unwilling to accede to the request, he has to fight the matter through the courts. Nobody deserves to be made to enter that casino. It can be a traumatic and time consuming, not to mention expensive, experience to establish something that both father and mother know to be a fact.

The Minister of State indicated that the requirement can be waived in what he referred to as exceptional circumstances, which I understand is the phrase used in the Bill. I will now examine those exceptional circumstances to see how exceptional they are. It appears to me from my reading of the relevant section - I hope I am incorrect - that it will suffice for a woman simply to sign a statutory declaration prepared by a solicitor on her behalf to the effect that she does not know the identity of the father, and no further evidence will be required. This is a necessary and fundamental reform but if my interpretation of the section is correct, it offers an easy way out. Gone are the days when people in this country took oaths and statutory declarations very seriously. Many people are prepared to sign or swear statutory declarations at the drop of a hat. I cannot find anything in the section that compels or requires a woman in that situation to do other than make a statutory declaration that she does not know the identity of the father. She could also deny that she knows the whereabouts of the father. That is even easier. The man may have gone to England, Dublin or somewhere down the country and she no longer knows his location.

I do not regard that as sufficient reason not to register the name of the father and his last known address. He must have had an address at some stage. He would have had an address during the relationship and the mother would probably have known it. Why, therefore, is any reference to the father excluded in a situation in which the woman simply claims she does not know his whereabouts?

Nobody could argue with the validity of provision on situations in which the interests of the child is threatened or there is a danger to his or her safety. The registrar can make a value judgment in this situation. However, we should be seeking to make this legislation as watertight as possible because we certainly will not be returning to this subject during the lifetime of this Dáil. This is a necessary reform which has been sought widely and is supported by all sides of the House. We want to ensure it has some reality in practice.

In regard to the ongoing question of the right of adoptees to their birth certificates and the fullest of information about their birth, all the arguments in favour of the reforms that the Government has introduced with this Bill apply with equal force to adoptees. Availability to the parents' birth certificates in the case of adoptees has been a feature of the law of the United Kingdom for 40 years, and the sky has not fallen. The Government has indicated that certain constitutional issues arise in Ireland but the weight of opinion suggests there would not be a constitutional barrier to effecting this change. I ask the Minister of State to give the matter serious consideration and to outline the Government's intentions in this regard when he replies.

The Bill also deals with the problem of marriages and civil partnerships of convenience. A civil partnership or marriage of convenience can be called a scam or an artifice aimed at gaining immigrant status. Speakers in the other House referred to the controversy that surrounded non-nationals coming into the country to give birth to children who automatically became Irish citizens. That is a separate matter, however, and it has been addressed by a decision of the Supreme Court which the previous Government followed up with legislation. This is a different matter. One or two cases have been brought to my attention involving allegations of marriages of convenience, as defined in the legislation, but I question the extent of the problem in practice. All the evidence appears to be anecdotal. Perhaps by definition there are no official figures for the number of people involved but it does not appear to be a widespread problem.

We have to be careful because this is a sensitive area. A civil servant will be deciding in the first and, indeed, the second instance whether a marriage between an Irish person and an non-national is a marriage of convenience. We have to guard against overzealous civil servants erring on the side of caution. People will be aware that the issue of racial profiling raised its head not long ago. It was ugly and it did not do the reputation of the country any good. If that was to creep into this area, or even a suspicion of it, the reputational consequences for the country could be catastrophic. It also has the capacity to cause grave injustice. I wonder whether this section should be written more carefully so we can spell out exactly what we mean.

What is the appeal system to the courts in a case like that, where the registrar decides that it is a marriage of convenience? Will legal aid be available to a person taking an appeal in that situation?

A welcome provision is the right of the family of someone, normally a resident in Ireland, who goes abroad for a short period of time and dies there, to have the fact of the person’s death abroad recorded here. I applaud that provision because if I may cite a personal case, a close member of my family died in very tragic circumstances abroad some years ago. The family got a foreign death certificate and at the time they wanted to have the death recorded here but that facility was not available. This is a very welcome initiative for which I sincerely thank the Government.

Another major change in this Bill is the right of foreigners who get married in their own embassies here to have that marriage validated. At the moment such marriages are not recognised in Irish law. I take it these marriages will be automatically validated and if people want to opt out, they must go through the procedure of opting out. That applies to marriages still in existence, not those which have ended in divorce and a remarriage to somebody else. The section states categorically that the marriage is deemed always to have been valid not just from the commencement order of the legislation, but from the date of solemnisation. It seems somewhat contradictory in that case that matters such as intestacy, rights under wills and various other legal rights will not come into effect or be recognised until the section commences, although the marriage is backdated to the moment of solemnisation. Is there a reason for it?

Section 16(1)(6) contains something I have never seen in any legislation:

If subsections (1) to (5) would, but for this subsection, conflict with a constitutional right of any person, the operation of those subsections shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect.

I am sure this is meant in very good faith but it is an extraordinary departure. The system is that when the Government brings forward legislation it secures the advice of the Attorney General who advises that the legislation is constitutional. It either is or is not.The Attorney General does not always get this right but he or she gets it right 99% of the time. This provision seems to say, “We think this legislation is constitutional but it might not be and if not, it has to be operated only to the extent that it is constitutional”. That opens an extraordinary legal minefield. I do not think one can write law to say that if legislation is unconstitutional, it is valid in so far as it can be operated constitutionally. That is quite bizarre. A section could be thrown into any legislation to spare the Attorney General’s blushes and say if this proves not to be constitutional, we operate the part that is constitutional. I would be very reluctant and I think the Government should be reluctant to bring in legislation containing such a provision.

Section 17(b) is an amendment to section 59B of the principal Act and states:

Where one or each of the persons notifying the registrar under this section is a foreign national, the notification or copy of the court order shall be accompanied by such documents and information as may be specified by an tArd-Chláraitheoir regarding the immigration status of the foreign national concerned or any other matter . . .

Many of the foreign nationals in this country are fleeing persecution. Somebody genuinely fleeing persecution might not be granted asylum status because there may not be sufficient proof. Many left their home countries in a hurry with nothing other than the clothes on their backs. They might find it very difficult to have or produce all the information that the superintendent registrar will deem necessary.

My colleague, Senator Jim Walsh, asked me to refer to an amendment which he put down in the Seanad, which may be more appropriate to Committee Stage. It involves the recording of the death of an unborn child. He cited a case where an unborn child was killed as a result of a road accident in which the mother committed suicide. The Minister of State said that time was short but that he would consider the situation to see if he could bring forward an appropriate amendment in the Dáil to meet the point, which is a very valid one.

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