Niall Collins (Limerick, Fianna Fail) | Oireachtas source

I am glad to have the opportunity to speak in favour of the Children and Family Relationships Bill 2015 on behalf of my party. Ireland has changed immeasurably in the past three decades. How we communicate, work and live are now unrecognisable compared to only a number of years ago. Our State has had to update its laws to reflect these changes and ensure that legislation reflects a modern Ireland. This is true, too, of our families. It is a simple fact that Irish families are far more complex today than our legislation recognises. Many of what we understand to be non-traditional loving family units are not protected or supported by our current laws, and this needs to change.

For this reason, we support the principle of the Children and Family Relationships Bill, which represents one of the most important reforms of child and family law since the Adoption Act was passed in 2010. This Bill will address serious deficiencies in how family law operates in Ireland and will ensure that the principle that actions and judgments made by our courts reflect the best interests of the child is upheld. This is a very welcome change and reflects the sentiment expressed by the Irish people when they voted to support the children’s rights referendum introduced by the current Minister for Justice and Equality in November 2012.

This is a complex and significant Bill. Its size and impact on how the State deals with the most fundamental unit of society will be immense. For that reason, we must be careful as this Bill makes its way through the Houses of the Oireachtas. There is no point in rushing the Bill through the House if we find that the law will need to be amended again in a year’s time or less.

I wish to put on record my concern at the Government’s delay in publishing the current Bill. The first general scheme of the Bill was published on 30 January 2014 by then Minister, Deputy Alan Shatter. We were still waiting on the final draft to be presented to the Dáil last week, despite commitments that the Bill would be passed well before the expected marriage referendum in May 2015.

On a point of principle, I do not believe that Bills of this importance should be available only days in advance of the taking of Second Stage in the House. It is difficult for all Members to go through the Bill, which stretches to hundreds of pages, in four days before the first debate commences. That is unhelpful and creates a lot of cynicism about how we do our business in Leinster House. Given the scale and impact this Bill will have, we could have done better in this regard.

It is also not helpful that the Bill and the referendum are being discussed in parallel, as it causes confusion. While I acknowledge that proceedings in the courts prevented certain aspects of the Bill from being introduced, the failure to act sooner in drafting and publishing the Bill may have a significant impact on the marriage equality referendum. We are already seeing the debate about the referendum being influenced by matters which have nothing to do with the equality referendum itself. An element contributing to that is the fact that the current Bill is only now going through the House and the Gender Recognition Bill is being discussed in the Seanad. Both of these Bills are important in their own right. The fact that they are now being mixed into one debate is unfortunate and does not help the focused understanding necessary for the marriage equality referendum.

I acknowledge the fact that the Department of Justice and Equality has faced serious and fundamental challenges since the original general scheme was published. We all acknowledge that those challenges of accountability and Garda reform should have been addressed more quickly, allowing the Department to get back to the work at hand. In any case, those responsible for failing in those challenges are elsewhere. It must be noted that the dysfunction we have witnessed in the Department of Justice and Equality over the past year or so seems to have had an impact on this Bill.

None the less, we welcome the fact that the proposed legislation seeks to put children at the heart of family law, provide legal clarity with regard to various family types and address discrimination faced by children in non-marital families. It is our hope that the Bill will significantly reduce the number of cases going to the courts due to the current legal vacuum. The Irish Constitution places great importance on the family, defining it as "the natural primary and fundamental unit group of Society" in Article 41. However, the courts have narrowly interpreted the "constitutional family" as including only marital families. Cohabiting couples, civil partners, lone parents, unmarried fathers and grandparents are all excluded from this definition. There are an increasing number of children in Ireland who are being cared for in non-marital settings. Indeed, one in four children live with lone mothers and almost one in ten live with unmarried cohabiting couples. Yet the law does not provide a mechanism whereby unmarried parents’ relationships with children are recognised. This can impact on their day-to-day parenting role, including consent to medical treatment or the granting of permission for school trips.

The lack of legal clarity can be particularly detrimental to a child in the context of family breakdown. In this regard, the Bill’s aim to provide greater legal certainty and recognition of the relationship between the child and the person or persons who are responsible for his or her everyday care and upbringing is a very welcome development.

We welcome the fact that the Bill is designed to take account of the growing complexity and diversity of modern families. We welcome the important changes to the laws on adoption, custody and assisted human reproduction. Whereas existing laws state that only married couples or sole applicants can seek to adopt a child, this Bill will extend the right to adopt to same-sex civil partners. It also allows cohabiting couples who have been living together for three years in a committed relationship to adopt children jointly. These are all welcome changes which I believe reflect modern Irish life and the diversity that is found in that life today.

The most important aspect of all of this is the principle that children will be the main consideration of the State and its courts whenever actions which concern them are being considered. This is something that has been sought for some time and will, I hope, result in a mindset change in how we deal with children in terms of our State agencies. While many State agencies have made a significant contribution to the well-being and development of our children, unfortunately there have been many instances in which legislation, constitutional law or other policy considerations have let down children in the most awful of ways.

This Bill will ensure that our courts make judgments with the best interests of the child at the core and examine the benefit to the child of having a relationship with both of his or her parents, assess the child’s physical, psychological and emotional needs, his or her religious, spiritual, cultural and linguistic upbringing and needs, the child’s views, having regard to his or her age and maturity, the history of the child’s upbringing and care, including the nature of his or her relationship with his or her parents, and any harm the child has been subjected to or is at risk of.

One area not included in the Bill is that of surrogacy. The issue was dealt with in the heads of the Bill published by the former Minister, Deputy Shatter. However, the Minister, Deputy Fitzgerald, has explained that she decided to remove it from the revised general scheme published last September, as a Supreme Court decision was pending at the time. We believe this was a sensible decision, but the surrogacy Bill should be brought forward as soon as possible.

Failure to legislate in this area has caused much uncertainty for families, which is unfair. I understand this is a very difficult area to legislate for and that there are ethical considerations in respect of commercial surrogacy, in particular, to be taken account of. Nonetheless, it is better to have proper regulations in this area instead of allowing for unregulated practices to develop.

One area in which we believe the Bill falls significantly short is the rights of unmarried fathers. Treoir has argued that there is nothing in the Bill for unmarried fathers, unless they have cohabited with the mother for the requisite time of 12 months, a minimum of three of which must be after the birth.

Therefore, unmarried fathers will continue to have to resort to the courts if the mother does not agree to sign a statutory declaration for joint guardianship witnessed by a peace commissioner or a commissioner for oaths. This seems like a lost opportunity, given the significance of the Children and Family Relationships Bill. Treoir has stated that this is a groundbreaking piece of legislation, but it is failing to address the current discriminatory position of unmarried fathers. Treoir has stated that we should pass legislation in line with other jurisdictions such as the UK, many European countries and Australia, where unmarried fathers are given automatic rights to their children when jointly registering the birth.

One of the interesting examples used by Treoir is the fact that the majority of parents and professionals mistakenly believe that having a father’s name on the birth certificate of a child gives him guardianship rights. It has stated that this misinformation has major adverse consequences for children, and the recommendations in this regard were that, at the very least, the Children and Family Relationships Bill should make mandatory the provision of information to all unmarried parents at the time of birth registration. Treoir has asked that the information provided should state the legal position of unmarried families and in particular the lack of rights for non-cohabiting unmarried fathers. It has suggested that the provision of mandatory information could be aligned with the current changes being brought about by the Civil Registration Amendment Act 2014.

Another issue raised by Treoir is a scenario where a statutory declaration for joint guardianship is signed and subsequently is mislaid or destroyed, resulting in no evidence of the fact that the father has guardianship rights to his child. This can have dire consequences, such as a father losing contact with his child, particularly where a mother changes country of residence, or not being able to consent to medical treatment for his child. Treoir has asked that the Bill make provision for the establishment of a central register for joint guardianship agreements to keep a record of statutory declarations agreeing guardianship rights. The Oireachtas Joint Committee on Justice, Defence and Equality and the Law Reform Commission have both recommended the initiation of a central register for joint guardianship agreements. I ask the Minister to address these issues as outlined by Treoir. It would certainly seem unfair that at a time of such fundamental change in family law across the board, the rights of unmarried fathers are still denied despite this significant opportunity. I would appreciate if the Minister could outline whether changes may be considered on Committee Stage of the Bill. Fianna Fáil will be seeking to table amendments that are reflective of Treoir's concerns.

This is probably one of the most significant pieces of family law legislation that will be passed by this House for decades to come. It is important in that sense that we should get the legislation right now rather than having to review it another time. The delay in publishing the Bill is very unfortunate, but I will not allow that to take away from the significant good that will come about if this legislation is passed. As such, my party and I look forward to supporting this legislation as it makes its way through the Houses of the Oireachtas.

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