Catherine Murphy (Kildare North, Independent) | Oireachtas source

I welcome the legislation and the opportunity to speak on it. Something was said on its timing. It has been too long in the making but I would not be overly critical of the current Government in this regard because previous Governments really should have taken some responsibility. We would not have a Bill that is so comprehensive had legislation been produced in a way that respected all the various factors in today's society.

I have been interested in family law and family rights, including children's rights, since I was a member of the Commission on the Family, which was established in the mid 1990s and reported in 1998. The Minister will be familiar with this given that her husband was also a member of that commission. So voluminous was the documentation that we all nearly went blind reading it.

Essentially, it was set up following the passing of the divorce referendum on the second occasion it was put to the people. The overall thrust of the commission's recommendations centred on the need for public policy to focus on preventive and supportive measures to strengthen families in carrying out their functions and to prevent difficulties arising. However, the Department of Social Welfarebecame the Department of Social and Family Affairs. Unfortunately, the family affairs aspect disappeared and that is part of the reason we now have a much more substantial item of legislation than would otherwise have been the case.

There was some discussion during those years about how we define a family, and the conclusion was that we should define a family by what it does in terms of its nurturing role rather than having a hierarchy of family types. That is the approach being taken today because families come in all shapes and sizes, so to speak. The Children's Rights Alliance gave us very interesting information on that. It said that there were 308,000 children living with 186,000 lone mothers; 104,000 children living with 60,000 unmarried cohabiting couples; 43,000 children living with 29,000 lone fathers; 230 same sex couples with children; and 42,000 people had divorced and remarried and so on. That gives us an indication of the diversity of family types today, and in many cases this Bill is recognising a reality.

I describe myself as a feminist and by that I mean I believe in equality. For many years I have had serious concerns about the treatment of unmarried fathers and their rights, and I know that concern is shared by many in this House. The legislation is an improvement in that respect but it is flawed. I take the point made strongly by Treoir and Ruth Barrington, who chairs that organisation, when it states:

Treoir favours automatic rights for unmarried fathers in line with practice in other jurisdictions such as Northern Ireland, Britain, many European countries, Australia etc. We regret that this Bill does not provide for automatic rights for those unmarried fathers who are not cohabiting and yet are in a committed and caring relationship with their child. We recommend that at a minimum the legislation makes it mandatory to provide unmarried parents with information at the point of birth registration on their legal position in relation to their children and on the options open to them.

I hope the Minister would at least take that point on board. Treoir is not on its own in saying that. The recommendation from the Law Reform Commission in 1982, and repeated in 2010, was that there should be automatic guardianship linked with compulsory joint registration on the birth of the child. It based that recommendation on the principle that all parents should be treated equally and also that it is in the best interests of the child.

With rights come responsibilities. If we consider how other jurisdictions apply some of the responsibilities, in Australia, for example, if someone has an automatic guardianship but they have not lived up to their obligations, it would be quite difficult to leave the country if they owed maintenance payments or whatever. There can be a change in behaviour when the balance of rights is changed, and equality should be afforded to both parents equally.

Colette Browne, to whom Deputy Mac Lochlainn referred, in a very good article in the Irish Independent, highlights some of the issues that can arise for a father who does not have guardian rights. For example, where a child falls ill he cannot authorise treatment. If a mother decides to move abroad, there is no means of preventing that, even where there is a solid relationship. That can be tragic for both the parent and the child in that case. She described the worst case scenario where a partner dies and the father, who is the natural father, is left alone to care for the child. He has to mount a court battle to press the right to care for his own child.

I accept the points - I had intended making some myself - about the anomalies that can be created in a relationship, particularly if it is a young couple. I have come across cases, and I am certain the Minister has also, where it was not possible for a young couple to cohabit because, for example, they could not afford the rent, and the Department of Social Protection would have a view on providing them with rent assistance. One arm of the State can cause a set of circumstances where another right is infringed by virtue of how policy has been determined. It is very important that the Minister examines that.

I accept this cannot have been an easy Bill to draft because the Minister is trying to balance rights. I accept there are situations where there is the most tenuous of connections between a father and a child, for example, where the pregnancy may have resulted from a fleeting holiday romance or the more sinister circumstances where the pregnancy occurred following rape and a baby is born. To give automatic guardian rights in those circumstances would be intolerable. I accept there is a balance to be struck.

It is important to construct legislation in a way that ensures there are not power imbalances that would put the child in a position where he or she could be used as a bargaining chip. We have all come across instances of that in disputes involving the two parents. It is critical to get that balance right. I would prefer if it was an automatic right with restrictions rather than simply restrictions in terms of the approach.

I very much welcome the extension of rights to grandparents. We have all had an involvement in the campaigns waged by grandparents. They feel a terrible sadness as a result of being completely cut off from children with whom they have developed a relationship. From the child's perspective, they have had a valued relationship with a grandparent that has been severed. It is important that the legislation respects and reflects the reality of life today.

The provision in respect of custody and the extension to include grandparents and other family members is welcome. The issue of custody often arises in tragic circumstances and in a crisis situation where there is an immediacy about it. I have helped a family through the mire when, say, a member of the family has abandoned the child or a parent has died. The grandparent or family member is often worried about whether they will get custody of the child, and sometimes they are not very open about the arrangement because of that concern. I have seen the panic that creates for people in those cases. It is important that clarity is provided on that. It is welcome that the child's views are not only listened to but are taken on board. The provision in the Bill for that is beyond timely, a point I have already made.

I wish to discuss the issue of assisted human reproduction. Usually when we debate big social issues, such as legislative changes on divorce or civil partnerships, we are affording new rights. Uniquely in this situation, however, we are restricting rights. Or we are restricting what has been allowed where there has not been legislation to control a situation that did require it.

The Minister has got the balance right in terms of there not being a commercial side, as well as where there is an ability to trace and a ban on anonymous donations. That kind of limitation is good. This is progressive legislation and, despite what might be discussed, one cannot deny technology. A few decades ago, it would have been impossible for some people to have a child, but technology has now permitted that to happen. Given the hoops that people must go through in order to have a child by those methods, one can be sure that they are absolutely committed to the notion of parenthood. The legislation is solid in laying down conditions before assisted human reproduction is permitted, as well as the issues of custody and adoption.

The Minister reminded us that the Status of Children Act 1987 abolished the concept of illegitimacy. People tend to harp back to the good old days, but there were some awful things about those times. This House has dealt with some of them, including the mother and baby homes, forced adoptions, illegitimacy and industrial schools, as well as the abuse children were subjected to in those institutions. When we are talking about the good old days and going back to values, we did not really value children then. We certainly did not value poor, vulnerable children.

This is a more enlightened era and many positive things in the legislation reflect the country's new reality whereby people live in very different arrangements compared to what was the case in years gone by. I will be supporting the legislation. I expect there will be amendments and I may well table a few myself. My big concern is about the balance of fathers' rights but other than that, there are many good initiatives in the Bill, which I warmly support.

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