Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Today, I am introducing the landmark Children and Family Relationships Bill 2015 to the House which, when enacted, will be a watershed in the development of family law. I thank the Joint Committee on Justice, Defence and Equality, its Chairman, Deputy David Stanton, and the members of the Opposition involved, for undertaking pre-legislative scrutiny of the Bill and for organising public hearings on it last April. I took account of many of the committee's recommendations when revising the general scheme on which the Bill is based.

I must also register today the pivotal contribution to the reform of family law in Ireland made by my predecessor, Deputy Alan Shatter, in this House and outside it. The Bill began on his watch, largely driven by his concern about the lack of action in this area, and I am privileged to continue the work, with the necessary changes and additions following the legal and other advices I have received.

As I stated, when enacted the Bill will be a watershed in the development of family law. It will align our family law with the realities of modern life and family life. It addresses a world where children are reared in married families, in lone parent households, in blended families, in households headed by same-sex couples or by grandparents and other relatives. It recognises that assisted human reproduction has created a new scientific reality where children are daily born to couples using donor gametes. It acknowledges that all of these children have in common the fundamental need for security and stability in their family situations. They are entitled to clarity in the rules on parentage, guardianship and access. They need to know that there is someone who has a legal duty to look after them. Where the relationship between the adults breaks down, a child must have fairness and as much stability as legally possible.

The Bill in effect modernises our law on a range of complex and sensitive areas, such as parentage, custody, access, maintenance and adoption. It adopts a child-centred approach, giving a child essential legal rights on matters that are fundamental to the child's identity and well-being. It takes account of the changing social demographic in Ireland over the past 51 years, since the Guardianship of Infants Act was enacted in 1964. Crucially, it equips us to support families now and in the future.

I will set out for Members the demographic context which is shaping this legislation. Most children live in marital families with their biological parents, and those families enjoy the unique protection of our Constitution with regard to marriage and the family. However, as Members of the House are also aware from their own life experience and in their day-to-day work with constituents, a significant minority of children live in other family types. The 2011 census indicated that for that year, 215,300 families were headed by lone parents with children, and 44% of these parents had never been married. There were 49,005 households of cohabiting couples with children under 15 recorded in the census. The number of children living in cohabiting households is rapidly increasing, rising by 41% between 2006 and 2011. These numbers indicate to us that a significant number of children live in households other than those headed by married parents.

In 2010, the Law Reform Commission, in its report on the legal aspects of family relationships, identified the need for a coherent and modern legislative framework which recognises the changing nature of families in Ireland. It recommended, for example, that provision should be made for parental responsibility to be extended to civil partners and step-parents. It also recommended that a child's relatives, persons in loco parentisor those with a bona fide interest in the child should be able to apply for custody. At the time in 2010, the commission also noted the limited legal recognition of the rights and responsibilities of families of donor-conceived children. The commission pointed to the issue as one which would need to be addressed by the Government. The issue has become even more pressing in the past five years.

Increasingly, it is evident that those who are unable to have children themselves use assisted human reproduction at home and abroad and in a wide diversity of situations, methods and circumstances. Children born into these situations do not have sufficient clarity on their parentage. The Commission on Assisted Human Reproduction recognised this problem in 2005, exactly ten years ago, when it produced a comprehensive report on the issue. No Government until now has taken action on it. The commission noted the "issue of legal parentage in Ireland of children born through donor programmes is complicated by the absence of legislation". It acknowledged that its recommendations would necessitate a change in the law relating to parentage. The commission also recognised that the application of the principle of intent of the parties, for instance the intent that a donor will not have a legal relationship with the resulting child, would necessitate the broadening of traditional family structures.

Put simply, the availability of assisted human reproduction arrangements has led to the birth of children who need legal certainty in terms of their parentage and guardianship. In the absence of comprehensive legislation, families have to go to the courts to secure the rights of the child. We cannot continue to let children be born into the unregulated environment I have described. We have a responsibility to these children that they should have certainty with regard to their parentage.

Legislation is also needed for children growing up in family types whose needs are not adequately addressed by current legislation, and the Government believes a legislative response is needed to give clarity to these children. This is why the Government made a commitment in the programme for Government to address the situation by "modernising and reforming outdated elements of family law".

The Children and Family Relationships Bill 2015 before the House today is proposed as the legislative response to many of the issues raised by the changing composition of families.

It is underpinned by two key principles. The best interests of the child must be central to legislation governing familial relationships, whether they be within the constitutional family based on marriage or in other family types. The effect of the provisions should be to promote the stability of such families and to ensure children are enabled to enjoy relationships of care and support with parents, guardians or those acting in loco parentis.

The Minister for Health, Deputy Varadkar, has already given a commitment to include surrogacy in the planned legislation to deal with the regulation of assisted human reproduction. The Government approved the proposals of the Minister on 17 February. The Department of Health is now proceeding to the drafting of the general scheme of a Bill and it will undertake consultation on what is a complex and sensitive area. There has been much discussion throughout Europe and internationally on this issue and the many difficult and complex matters that will need to be thought through carefully.

Let us be clear about the situation. The vast majority of children will continue to live with mothers or fathers who are biologically linked to them, except where they have been adopted. It is important to recognise that in the adoption area there is a move towards open adoption, whereby, increasingly, biological parents are kept informed about their child's progress on an ongoing basis. This is another element for us to consider in respect of the ongoing contact children have with their biological parents, even in the case of an adoption. We see this arising increasingly in practice.

The Bill will not change the rights of most children in terms of parentage. A child who is the natural child of a heterosexual couple will have exactly the same parentage rights as at present. That child will continue to be the child of his or her birth mother and natural father. However, two categories of child will get the chance to gain a parent or parents as a result of the Bill. Under this legislation, a donor-conceived child will get the right to gain a second parent. As it stands, if the child is born to a female same-sex couple, that child has only one legally recognised parent if the donor is unknown. Furthermore, the Bill will enable a child to be jointly adopted by couples who are civil partners or who have cohabited for at least three years. The provisions on adoption will give a child in need of parents access to a broader pool of potential parents ready to assume parental duties towards that child. There has been a dramatic change in adoption numbers in Ireland and the number of adoptions has fallen dramatically. In fact, the vast majority of adoptions in Ireland are now by step-parents or as a result of international adoption. Last year, approximately 120 adoption orders were made by the Adoption Authority of Ireland, many to step-parents.

We will hear a range of views in the coming weeks on what is best for children. We will hear people express the view that children have a right to a mother and a father and that it is always in their best interests to be brought up by their natural mother and father in a married family setting. We will hear the opposite view to the effect that it is in the best interests of children to be brought up by any parent or parents who love them and dedicate themselves to the children's welfare, regardless of the gender or sexual orientation of the parents. People will bring forward evidence supporting either point of view. Anyway, we know that many thousands of children in Ireland and many adults alive today are being or were brought up happily and successfully by lone parents, civil partners or cohabiting couples, and we know that the majority of children have been brought up happily and successfully in the marital family. Our challenge is to ensure the child's best interests are served regardless of the family type. I have always maintained that I regard the best interests of the child as the golden thread running through everything that we are doing in this Bill and with family law. As I have said already, that is the core governing principle of this Bill. The best interests of the child are key and this is the test that the courts will apply in decisions on guardianship, custody and access.

I am pleased that the Bill outlines a wide range of factors for the court's consideration when determining a child's best interests. These factors will include the benefit to the child of having ongoing meaningful relationships with each parent. It will also take account of the child's physical, psychological and emotional needs. Crucially, it will consider the capacity of the person seeking guardianship, custody or access to care for and meet the child's needs. The court will also be able to consider any history of family violence. This is important because of the potential impact on the child's safety and well-being and that of other family members. This is the first time in legislation that the principle of best interest has been outlined in such detail. The court can take many other factors into consideration. It is not an exhaustive list but it is indicative of the areas that need to be considered.

One issue that has generated some commentary and in respect of which there is a wide spectrum of views is the proposal to enable civil partners and cohabiting couples to adopt jointly. Under our adoption laws, since 1952 a single individual, regardless of sexual orientation, has been eligible to adopt. However, at present only married couples are eligible to adopt jointly. The Bill will extend eligibility to adopt jointly to civil partners and cohabiting couples who have lived together for three years.

There has been some commentary in the media to the effect that our provisions on adoption do not recognise a hierarchy of family types, under which a married family is considered the best family to adopt a child. I wish to be clear. My view, and the view underpinning this Bill, is that adoption is a child welfare mechanism. It is not about discriminating in favour of particular family types. It is not about the marital status of the adopters. It is about giving a child the chance to have a family. It is about matching the child to a family that best safeguards the child's welfare. Under these provisions, each couple will be assessed on whether they are suitable to raise the child and to fulfil all parental duties towards that child. A single person will continue to be assessed on the same basis. If the married couple is considered to be the most suitable couple to adopt the particular child, that couple will be selected. In other cases, the couple chosen will be a civil-partnered or cohabiting couple. However, many of the cases of children most likely to be adopted will involve in-family adoptions in which the child's parent and the parent's partner jointly adopt the child. These provisions will now enable more children to get the chance of gaining a second parent, who will have parental responsibilities and duties towards them.

This Bill is a good news story for many families. The most wide-ranging reforms in the Bill relate to guardianship. These reforms have the potential to benefit tens of thousands of families throughout Ireland. Many unmarried fathers will now automatically become guardians of their child if they cohabit with the mother for 12 months, including three months with mother and child following the child's birth. That cohabitation can happen anytime between the child's birth and when he or she reaches 18 years of age.

At the moment, guardianship is restricted to parents, except where a parent has appointed someone as a testamentary guardian in the event of the parent's death. If a parent is hospitalised, a step-parent may have to defer day-to-day decisions affecting the child because he or she is not the child's guardian. This Bill will provide solutions to these problems. It proposes that a step-parent, civil partner or cohabiting partner will be able to apply to court to become the child's guardian if they have undertaken day-to-day care of the child for over two years. The cohabiting partner must be living with the parent for three years to be eligible to apply. Any existing guardian will of course have the right to object to the appointment.

A person will also be able to apply to court to become a guardian if she or he has provided day-to-day care for a child and there is no parent or other guardian willing to take on these responsibilities. This provision will be of benefit in situations where a grandparent, aunt or uncle has stepped in because a parent is unable to care for the child. Becoming a guardian will enable that person to take key decisions on the child's behalf. These provisions offer good news for foster parents. It will enable them, if they so wish, to apply to become guardians of the child and to offer more stability in a child's life.

A court-appointed guardian will generally be given limited guardianship powers to enable him or her to take day-to-day decisions on the child's behalf, such as signing the school note. However, he or she will be unable to decide where the child lives or consent to a passport, for example. Similarly, he or she will be unable to place a child for adoption. However, the court will have the option of making the person a full guardian if it is satisfied that it is in the best interests of the child to do so.

What happens to a child if the person with sole custody experiences serious illness or injury? A child can fall into vulnerable situations in these circumstances. The Bill provides for a targeted solution to address such a crisis in a family's life.

In situations of serious illness or injury, a parent or guardian with sole custody can nominate a temporary guardian who will be appointed by the court to take on the role of guardian temporarily. The court must be satisfied that the temporary guardian is suitable for the role and that the appointment is in the child's best interests. There are safeguards. Tusla will be put on notice in case of any child welfare or protection issues, and the appointment is subject to any limitations imposed by the court.

Another welcome reform is that the Bill will enable grandparents and other relatives to have access more easily to children in the context of relationship breakdown. They will be able to apply directly to the court for access, rather than having to go through the existing two-stage process whereby they have to apply to the court for leave to make an application for access.

The Bill will enable a child's views to be ascertained in proceedings on guardianship, custody and access. These provisions comply with Article 12 of the UN Convention on the Rights of the Child, which require a child's opinion to be heard on matters affecting him or her. It is important that a child should have the opportunity to have a say on matters that are so fundamental to his or her well-being. The child will be able to give views directly, as appropriate. The court will also have the option to appoint an expert to ascertain whether the child is capable of forming views. If the child is sufficiently mature to form views on the matters that are the subject of the proceedings, the expert will have the duty to ascertain those views and to convey them to the court. This mechanism is designed for private law proceedings and, otherwise, we have the guardian ad litem.

There has been a lot of public reference to the assisted human reproduction, AHR, provisions in this Bill. My purpose is to ensure that there is certainty of parentage for donor-conceived children. The Bill provides for those who always intended to be those children's parents to become their parents in law. In this aspect, the Bill is essentially focused on parentage. I want to repeat that the complex and wider regulation of AHR will be addressed in separate legislation by the Minister for Health. I believe, and am sure Deputies will agree, that it is the appropriate Department to develop that legislation.

I am very pleased that I was able to accommodate the strong recommendation of the joint Oireachtas committee that provisions be included to enable a donor-conceived child to trace his or her genetic identity. As Deputies will see, Part 3 provides for a national donor-conceived person register to be established and operated in the first instance by the Minister for Health. As the AHR legislation progresses, I am sure there will be an independent authority that will deal with these issues. In the first instance, and as far as this Bill is concerned, it will be the Minister for Health.

I want to thank the Minister for Health, Deputy Leo Varadkar, who has worked closely with me on the provisions which set out the obligations on donor-assisted human reproduction facilities to record and transmit information to the register. I am conscious there has been some concern that anonymous donation will be prohibited, except for some small exceptions. I realise that these provisions will impose extra responsibilities on facilities and that donations may decrease in the short-term. However, international experience indicates that donations will increase after a short period. In any case, I believe that a child's right to identity outweighs potential commercial considerations. It reflects the priority that we attach in this Bill to children's rights.

Turning now to the description of the Bill, Part 2 deals with parentage in cases of donor-assisted human reproduction. There are two types of couple who will benefit from these provisions: heterosexual couples and female same-sex couples who have a child through donor-assisted human reproduction. A mother's spouse, civil partner or cohabiting partner will be able to become the second parent of a child born to both of them. There are three conditions that will have to be fulfilled: the donor-assisted human reproduction will have to take place in a clinical setting; the birth mother and the intending second parent will have to consent in advance that they will be the parents of any child born through donor-assisted human reproduction; and the donor will also have to consent in advance of the procedure that he or she is a donor and does not intend to be a parent of the child. If these conditions are fulfilled, the intending parent will be recognised as a second parent under section 5. We have had much discussion in regard to adoption and the child's right to information. Clearly, the same principles apply here to the child's right to this information.

Detailed provisions have been included on the consent required of the birth mother, second parent and donor, reflecting the importance of full and informed consent in the recognition of parentage. Provisions are also included which detail the information that must be given to the birth mother, intending second parent and donor which make clear to them the effect of their consent on the parentage of the child born as a result of the procedure. As I said, this is the first Government that has begun to deal with this complex issue, which affects many couples in Ireland today.

The Bill makes provision for retrospective recognition of the parentage of certain donor-conceived children, and there are detailed sections in this regard. Where a child is born in the State as a result of donor-assisted human reproduction treatment carried out before the commencement of the Bill, sections 18 to 20 outline the procedure that will apply. The couple can apply to the District Court or to the Circuit Court for a declaration of parentage given certain conditions.

Part 3 sets out the obligations that will apply to donor-assisted human reproduction facilities. They will be prohibited from using anonymous gametes other than in two cases. It will be possible for a couple who have already had a donor-conceived child to use an anonymous donation from the same donor within three years of the Act's commencement to enable the couple to have a full genetic sibling of their child. It will also be possible to use embryos formed pre-commencement, and there is no time limit on the use of those embryos in donor-assisted human reproduction treatment. Part 3 also sets all of the details in regard to accessing the national donor-conceived person register, the procedures that must apply and the information that must be given by the donor and which is available to the child.

I have already dealt with Part 4, which outlines the guardianship provisions. This Part also proposes a set of enforcement procedures in regard to custody and access. These provisions are intended to ensure that both parents can have a meaningful relationship with their child, even in the context of relationship breakdown. Measures will promote compliance with court orders on custody and access. These include allowing a court to require a parent who is persistently flouting a court order to attend a parenting programme or to give the other parent extra time with the child to help rebuild their relationship. We know this is a real issue in terms of access and custody where there is a conflict situation. These initiatives are in the Bill in order to help couples to continue parenting in a positive manner. If there is high conflict, there are initiatives in the Bill to help deal with that situation, which is an improvement on what is currently available in the courts.

Part 5 makes technical amendments to the Succession Act 1965 to address situations in which civil partners are both the legal parents of a donor-conceived child.

Part 6 deals with maintenance liabilities. Clearly, there are implications for maintenance as the guardianship requirements are changed. The amendment allows the court, in certain circumstances, to order payment of maintenance by the cohabitant of a child's parent for the support of the child.

Part 7 amends the Status of Children Act 1987 to allow for DNA testing as the means of establishing parentage. Part 8 amends the Family Law Act to enable the court to order maintenance payments by the cohabiting partner of a child's parent for the benefit of the dependent child and to make associated provisions.

Part 9 allows for the civil registration changes that are necessary, particularly section 88, which details the process of registration of the child's birth. I want to thank the Tánaiste and her Department for the work they have done in regard to the changes that are necessary for the civil registration Bill. Section 89 deals with a situation in which a child has been born through a donor-assisted human reproduction procedure that took place before the Act was commenced.

There have also been changes in the Passport Act. I thank the Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, for the co-operation I have received from his Department.

Part 11 amends the Adoption Act, as I have outlined to the House. Part 12 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act to extend the protections of that Act to dependent children of one or both civil partners.

In 1987, the Status of Children Act, by abolishing the concept of illegitimacy, began the process of dismantling the family law architecture that treated children differently because of the families into which they had been born.

The Children and Family Relationships Bill is a major step forward in terms of equality for children. It protects the rights of children of married families. Equally, it gives new rights to children living in other family situations. I am confident that hundreds of thousands of children will benefit from its provisions. Thousands of families will gain a stability and security they have not had up to now, which is very important in terms of the best interests of children in this country.

The Bill is child-centred and family-centred. It is an ambitious Bill which sets a blueprint for family law for decades to come. Its reforms are long overdue. We owe it to the children of Ireland to give them the security and stability in their families that they deserve. I commend this Bill to the House.

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