Sandra McLellan (Cork East, Sinn Fein) | Oireachtas source

Like my colleague Deputy Mac Lochlainn, I welcome this Bill, which represents the most important reform of child and family law for a generation. It will have a real and positive impact for a large number of children on a daily basis.

The legislation seeks to put children at the heart of family law. This is right and long overdue. It will provide legal clarity for various family types and address the crucial issue of the discrimination faced by children in non-marital families. Every child deserves the same rights, status and protection, regardless of family background. No child should be penalised or treated differently in the eyes of the law due to varying family structures or circumstances. I am pleased that this Bill puts children firmly at the centre of its focus and finally recognises the diverse ways in which children are conceived and raised. It enshrines key principles of the children’s referendum into law.

Overall, the Bill provides legal clarity on parentage, guardianship, custody and access for all families in Ireland. As the Children's Rights Alliance has stated, it “represents an important milestone on the road to recognition of children as rights holders”. The Bill comprises more than 170 sections and seeks to extend guardianship, custody and adoption rights to different types of family. It will have wide-ranging effects. First, it will enable civil partners and cohabiting couples who have lived together for three years to apply jointly to adopt. Currently, they can only do this individually. One member of a same-sex couple will become eligible for adoptive leave. The choice will be left to the discretion of the couple. In respect of same-sex female partners, the rights currently held by fathers to parental leave will be extended to the second female partner, where applicable. If a spouse or partner has lived with the biological parent for three years and has looked after the child for two years, he or she will be able to apply for guardianship or custody.

In addition, the legislation will allow a child’s relative to apply for custody if that relative has looked after the child for 12 months. Guardianship, access, custody and maintenance rights and responsibilities will be extended to cohabiting, civil partner and extended family members in some instances so that children will be able to have a legal relationship with the people raising them, even though they are not their biological or adoptive parents. This includes grandparents, step-parents, informal foster parents and the second parent in a same-sex-headed family. With regard to unmarried fathers, the Bill will give automatic guardianship rights to the father if he has lived with their child’s mother continuously for a year, including three months after the birth.

Prior to this Bill, many unmarried fathers mistakenly believed that they held legal rights to their children as long as their names were on their birth certificates. However, those unmarried fathers had no legal rights at all. This Bill will now mean that a father will have automatic guardianship rights as long as he and the mother had cohabited for the requisite time. This means fathers will have to be consulted on all major matters concerning the children and their consent will be required in order for them to be relocated. Even in such an eventuality, children will be entitled to have a legal relationship with their father.

Although these steps are progressive and welcome, I would like to highlight an important concern which Deputy Mac Lochlainn raised previously on this point. It is not always possible for a father to live with the mother from the time of the birth of their child. The reality is that many couples who experience unplanned pregnancies are unable to live together for a myriad of reasons. It might be that they are very young and still living with their own parents. There may be difficult economic challenges or personal or health reasons. In these difficult economic times, many people find themselves unemployed or underemployed and many parents have no choice other than to travel abroad in search of work. Is it therefore fair to prescribe that a father must have lived with the mother of their child for the first three months, and preferably 12, at best, in order to be entitled to full parental rights to his child?

Taking all these points into account and acknowledging that there is not a one-size-fits-all method to developing a relationship, it is important for us to factor in diverse realities when developing the parameters to legal rights of fathers. All biological fathers, married or unmarried, deserve to have automatic rights to their children on the registration of their birth. This is a course of action recommended by the Law Reform Commission as far back as 1982 when it said that a non-marital father should automatically become a joint guardian. In 2010, the Law Reform Commission again recommended that automatic guardianship should be linked to compulsory joint registration of the birth of a child. There were two guiding principles, namely, the best interests of the child and the notion that all parents should be treated equally, regardless of gender or marital status.

The Minister has said that those fathers and men not covered by the new Bill will be able to apply for a statutory declaration. This would be a legal document signed in the presence of a peace commissioner and conferring guardianship rights. However, an unavoidable complication to such a procedure is that there is no central register for such documents. In other words, if that piece of documentation is misplaced or if either parent chooses to get rid of it, there is no evidence that it ever existed. Currently, as I understand it, there is no provision in the Bill to set up a register of such statutory declarations due to the resource implications such a provision would entail. Should there not exist a register of guardianship for all these children? This would be not only to the benefit of fathers but would also permit the State to maintain accurate records of parental responsibility.

Assisted human reproduction has become a growing factor in today’s society. In recognition of this fact, the new legislation will ban the use of anonymous genetic material and provide for the establishment of a donor conceived person’s register. This will protect the identity rights of children born through assisted human reproduction and enable these children to trace their donors. We have often heard about the pain caused to the many adopted people who cannot establish their genetic origins. This Bill will ensure that future generations will not be subjected to that same pain.

Speaking in support of the proposed legislation, the Minister for Justice and Equality, Deputy Frances Fitzgerald, said that the legislation “provides a legal bedrock upon which the diversity of families will be valued, recognised and protected in today’s Ireland”. I believe this to be true. The simple fact is that this Bill acknowledges just how much family life has changed in recent decades and it puts a firm and detailed protective framework around children. It articulates, for the first time, legal rights for grandparents and others whose relationship with a child is often sundered against their will and the child’s will due to a breakdown in family relations.

It is important to note that this Bill and the upcoming same-sex marriage referendum are separate issues. The referendum in May is a referendum on marriage equality and the only question people are being asked is whether gay and lesbian couples should be allowed to get married. The referendum in May does not in any way deal with the rights of the child and the two issues should not be confused.

The Children’s Rights Alliance has warmly welcomed the Cabinet’s approval of the Children and Family Relationships Bill and we in Sinn Féin support this recognition. The Bill will ensure that all children are cared for and protected in a range of family types into the future. It will give our courts much greater flexibility in granting guardianship in controversial situations. The fact that these decisions will be subject to judicial scrutiny will ensure that all our people’s rights are upheld and protected.

Although we in Sinn Féin broadly support the Children and Family Relationships Bill, we believe there are some areas in which the Bill can be improved. The best interests principle is really strong and has a clear definition, but the voice of the child in this principle is weaker. It is questionable whether it would stand up to a constitutional challenge in the event that the Supreme Court ratifies the referendum outcome, given that the option to obtain a written social report or appoint an expert to determine and convey the child's views is still discretionary. Barnardos has expressed concern around the appointment of such experts as there is no scope in their role to convey to the court what, in their professional opinion, is in the best interests of the child.

This dual function is already present in the guardian ad litem model operational in public law cases. The Bill should establish a court welfare service, which would include a number of aspects including mediation services and child contact centres. This court welfare service would then become a crucial link between the family and the courtroom and enable judges to make informed, holistic decisions based on the information presented to them. Such a service could also include the expert appointed to determine and convey the child's views.

Sinn Féin will strengthen the Bill in parts and will be submitting our own amendments, but we endorse the proposed Bill and commend the Minister for pressing it forward.

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