Aengus Ó Snodaigh (Dublin South Central, Sinn Fein) | Oireachtas source

This is a wide-ranging Bill that, like Deputy O’Dea, I do not oppose. It deals with some oddities of the Irish registration system. One of these is that we are forever being told that very few laws can be retrospectively applied, yet in this Bill embassy marriages are retrospectively validated. That is a good thing but it proves that where there are sometimes intractable problems it can be done and is an admission that there was a fault in our law. We are plugging that gap to ensure that the over 3,000 marriages or civil partnerships that occurred in embassies between 2007 and 2010 are now recognised in law. That was a problem. Some people may have decided to have their marriages recognised by having a second marriage ceremony or solemnising the partnership originally performed in an embassy.

I read this Bill when it was published. It is one of those difficult Bills for which one needs the principal Act and has to bounce back and forth between the two. I understood the basis for some of it and decided to wait to listen to and read the Seanad debate on other parts, which helped to clear up some of my questions.

Obviously, the intention is to ensure fathers are registered on birth certificates. That is the primary element of this Bill. This is a good thing because it addresses the requirements faced by this country under Article 7 of the UN Convention on the Rights of the Child, which provides that "the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents". Article 8 of the convention provides that "States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference". As I have said, it is a good thing that we are ensuring the problems and issues that were identified with the registration process in the past will be addressed. I will focus on particular peculiar elements of this legislation on Committee Stage. I will try to enhance the Bill to ensure any difficulties are addressed.

In essence, the child has a right to his or her identity, including knowledge of who his or her parents are. Under the current provisions, if the parents are unmarried there is no requirement to name the father on the birth certificate. This has caused problems for many fathers. Perhaps it explains why the mother's name only is registered in 20% of non-marital births. As I came into the Chamber, I think I heard the Minister of State say that in 2008, just 5.4% of births were registered without the father's name. That is a large number in some ways. I would like to know whether the number of unregistered fathers - a figure of 4,000 has been mentioned - remains the same. I know of instances in which the mother registered the name of the father at a later stage. While it might seem like many fathers are not registered at the time of birth, I suggest that the number of such cases reduces in the weeks and months following the birth. I do not know whether this Bill will make it more difficult to registered the father's name after a period of time. If it will make it easier, that is a good thing in some ways. Later in my contribution, I will mention a peculiar case I came across in the course of my work as a Deputy. I think we manage to deal with every type of case under the sun in here. If there is an exception to the rule, somebody in this House will have come across it.

The Law Reform Commission has surmised that the reason for the non-inclusion of the father's name on some birth certificates is the complexity of the current arrangements for registering the birth of a child of non-marital parents. This hiccup probably dates from a period when everybody was expected to be married and some of the institutions here nearly encouraged those who were not married to say nothing and hope it - the child, not the problem - would disappear. One of the legacies of that period with which we are dealing is the movement of very young children out of this country for the purposes of adoption on foreign shores. As much of that continues to emerge, I hope people will be able to access information on where exactly they came from. In my own family, one of my cousins was skirted away to England after her birth records were falsified by the nuns in charge of the institution in which she was born. I hope that legacy is being addressed. We must ensure something like that can never happen again. In the old days, the registration was done in the hospital, whereas now it is done by the registrar. That can cause its own difficulties. I welcome the Bill's attempts to deal with some of these problems.

For practical and profound reasons, people need to know where they came from as children. It is a small world, and Ireland is even smaller. Information on our genetic backgrounds is vital, especially in this day and age when medical science enables us to identify and address at an early stage medical issues that can cause greater problems if they are not dealt with as children grow into adulthood. Some of these issues can lead to early death if the genetic make-up of the child is not recognised and problems are subsequently not identified. If the names of the child's mother and father are on his or her birth certificate, and if the name of the father is correct, some of these difficulties can be easily identified as a first step. One of the problems with this legislation is that in the absence of DNA testing, there is no guarantee that the person named as the father on the birth certificate is in fact the father of the child in question. I should mention that a mother who gives a wrong statutory declaration is committing a crime. This is something that happens. Our society is not that pure. Many children have been reared by men who wrongly thought they were rearing their sons and daughters. It is something we cannot legislate for. I would never ask for the introduction of a system that would require every child, mother and father to be DNA tested. We have to take people on trust. This is one of the complexities we have to deal with when births are being registered.

I learned something about the registration of births when I dealt with a case that I will highlight as an example. The case in question ended up in the media eventually, so I will not use the mother's name. When she was in hospital after giving birth, she refused to name the father of her child on the birth certificate. She decided to register his name two weeks later when she accepted that the father was entitled to be named. When she went in, she found that someone had been registered as the father. It was a scam. Another woman on the ward registered a foreign national as the father so he would have the status of the father of an Irish-born child. That was not the problem. The Garda admitted it was a scam. The Office of the Registrar General accepted the mother's bona fides. It was hugely complicated to change the birth certificate at that stage. The woman had to get a solicitor, but she did not have any money. She was put in a dangerous predicament. All of a sudden, the real father was saying "why did you put this on that?". It took months, if not years, to get to the end of it. The woman in question could not travel abroad with her child because she could not get a passport in the absence of a signature from the man registered as the father. He would not sign it. She did not know who he was, although she had an address for him somewhere in Lucan. The procedures in the Office of the Registrar General were tightened significantly on foot of this case. It shows that people will go to huge lengths for the purposes of identity theft. Somebody's identity can be very valuable in this day and age. The case I have mentioned is an example of that. It is important in any of this legislation to appreciate that what we put down on birth certificates will stand the test of time, particularly for the child but also for the rest of the family.

I welcome section 6 of this Bill, which proposes the inclusion of a new section 22(1D)(c) in the Civil Registration Act 2004. This provision will allow a mother who "believes that providing the information is not in the best interests of the safety of the child" to opt out of her duty to name the father of the child. There are instances in which this is appropriate. The father might be abusive. It could be an incest or rape case. I hope this recognition of those realities will be able to stand the test. It might not be in the best interests of the child to learn in the initial years of his or her life that he or she is the product of rape or incest. I think every child should be entitled to find out when he or she is old enough. That would be between the child and his or her mother, or even the father of the family, as opposed to the father of the child.

It is an ethical dilemma. Does one force a mother to declare someone a rapist? In many instances, the case may not even have been concluded in court yet, so there could be implications. I welcome the fact that there is a facility whereby women in vulnerable and stressful situations are not forced to name the fathers. It may be necessary to ensure that the registrars are upskilled and trained to understand the peculiar situations that gave rise to this legal provision.

The Minister of State might address another matter when he is concluding, although I might not be present, as I must go canvassing. It might also be addressed on Committee Stage, namely, a teenage mother who declares an older father where the girl is 15 years old and the boy is 16 or 17 years old. By declaring him the father, she could open up a situation where he could face prosecution. This is not the case in reverse. In light of the law on legal responsibility that was passed in recent years, a boy of 16 or 17 years can be criminalised. I might have the exact age wrong, but it leads to a peculiar circumstance. It is now compulsory to report any instance of child sex abuse, which is what the case in question would be under the legal definition. As such, by adding the father's name to a birth cert, the registrar would be obliged to inform the Garda. We should be aware that this situation needs to be considered. If the case involves a 15 year old and a 20 year old, I have no problem with the obligation, but we need to be careful about dragging young teenagers into the criminal system because of mistakes or experimentation. It is not my area of expertise but, in some ways, this is the nature of kids being kids.

Thankfully, being named on a birth cert does not automatically translate into having rights. Mothers might be concerned about naming fathers because, for example, they have left abusive relationships. There can be a range of reasons. Understanding that naming the father does not automatically grant him access, custody or the like will form part of the education on this matter. It should be stated clearly when a mother who is seeking to register a birth asks for a packet. This legislation does not bestow further rights on unmarried fathers. On the other side, unmarried fathers deserve additional rights, but this is not the legislation in which to grant them. They should not have to fight for their rights, which is what they have been doing for many years, continuously chipping away in an attempt to get more hours of access to their own children here or there and all that flows from that.

The issue of marriages of convenience forms the other part of this Bill. It is complicated because, in some ways, every marriage is a marriage of convenience. Thankfully, most of us who are married are still in love and have everything that goes with that, for example, children. That said, how many marriages in Ireland and abroad were for the sake of convenience to remove the shame of having children out of wedlock? Are these not marriages of convenience?

In this case, however, marriages of convenience are those used to get citizenship or access to services within the State. At times, the tabloid media has made great play of it, but I do not know whether it is that large an issue. In Ireland, the number of marriages between EU and non-EU citizens has reduced recently. This could be a consequence of the downturn. We need to be careful not to stigmatise all of these marriages so that people do not presume they are scams. A witch hunt should not result from us setting the bar higher for couples who are genuinely in love and want to get married and settle down to spend the rest of their lives together. Just because one person is not an EU citizen does not mean a couple should be treated differently. We should examine whether this provision is reflected in other jurisdictions like France and Germany. Perhaps it has been applied across the board in a bid to protect the EU from the hordes of non-EU men coming to take EU women or vice versa.

The criteria such couples must satisfy, for example, the length of time they have known each other and the number and frequency of meetings prior to their marriage, are bureaucratic. I do not know how the Catholic Church will react to the question of whether people have lived together. It might not like us going down the road of telling people "fair dues" if they have been living together for a number of years and want to get a marriage licence. I do not have a problem with that, but questions like this often emerge when marriages of convenience, inconvenience or so on are being examined.

I compliment the Minister of State on his comments. I was going to raise an issue during this debate that I raised previously and to which I received a letter in response. The issue can be addressed without interfering with the sanctity, as it were, of existing registers. We can register children who have died in the womb but would have survived otherwise, bar a tragic accident, as in the case raised by Deputy O'Dea and, in the Seanad, Senator Walsh. It shows that we are a caring society when we can change our laws to take account of exceptional circumstances. Hopefully, not many cases will be captured by such a change. The nature of democracy is that a citizen can raise a point and we can change the law in response. There is no cost involved in this instance and, as far as State policy is concerned, it is the recognition of a child who, bar unforeseen circumstances, would still have been alive and well.

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