Thomas Pringle (Donegal South West, Independent) | Oireachtas source

I agree with everything said by Deputy Lyons. We should look at human flourishing as a way of organising society, as it would be much better. The family unit, as it was once known, has changed significantly and it is still changing. In one generation, and in one family alone, the unit can go through several changes as it adjusts to different circumstances. According to the 2011 CSO figures, one third of families do not belong to a traditional family unit, 186,284 single mothers care for their children and 29,031 lone fathers care for theirs. The number of cohabiting couples with children amount to 60,269 people. This means that more than 275,000 adults and children fall outside the traditional family unit. Significantly, the Bill reflects this change and respects the many different definitions of family throughout Ireland, making them equal under the law.

Overall, the Bill improves equality in society. It allows same-sex couples to adopt a child jointly, subject to the requirement that they be suitable adopters. Nobody would have a problem with this. The Bill sets out various provisions by which a wider circle of people will be able to apply for guardianship, custody of, or access to a child, including grandparents. There are provisions in the Bill to support joint parenting after relationship breakdown, and mediation between estranged parents is encouraged to resolve disputes about their children. Various provisions are set out with the aim of helping people to make parenting work.

The law relating to child maintenance is amended so that all children will be treated equally, regardless of their circumstances of conception and birth, when child support or lump sum orders are made. Most importantly, the Bill provides a new definition of the best interests of the child in Irish law, meaning that courts will have to consider the physical, emotional, psychological, educational and social needs of the child, including his or her need for stability having regard to age and stage of development. The best interests of the child are indicated in Part V, which safeguards children's voices in the court system. It takes into account the best interests of the child in all court proceedings and indicates a comprehensive list of what the courts must take into account when making a decision that could affect the child in question. However, attention needs to be paid to the application of this Bill in the courts, and the court procedures need to be child-friendly. Dr. Geoffrey Shannon, the special rapporteur for children, suggested that, in tandem with this welcome legislative development, structural reform should also take place. The establishment of a specific family court system was promised in the programme for Government and is a necessary development for a fair and effective forum to vindicate the rights of children and families.

There are some provisions in the Bill which do not contribute to the development of a more equal society, and which foster a sense of inequality within the family structure itself. This is regrettable, given that the Bill generally sets out to make family relationships more equal, no matter what type of family is involved. At present, a father only has full guardianship rights if he co-signs a statutory declaration paper with the mother of the child in front of a peace commissioner, commissioner for oaths or solicitor. This is despite the fact that the father may have signed the child's birth certificate. The Bill improves this situation by automatically granting rights to fathers, but only if they have cohabited with the mother for 12 months in total, three months of which are after the baby is born. Here the law presumes the father is guilty of not being responsible until he is proven innocent.

The Minister stated that the 12-month provision was put into the Bill to give the father an opportunity to show responsibility through cohabitation. There is a presumption that mothers have responsibility from the very start, which is unfair to fathers. Many men show responsibility even without cohabiting. Some couples parent a child without cohabiting for many reasons, such as housing issues or a requirement for a parent to work away from home. Why should these fathers not have automatic rights to their children? Some men can live with the mother of the child but demonstrate no responsibility, and we probably all know many of them. There are also mothers who, for different reasons, are not responsible either. The consequence of a father not being given automatic rights to the child means that if the mother is away and the child falls ill, the father cannot authorise medical treatment. If the relationship breaks down and the partner decides to move abroad with the child, the father has little power to prevent this. The father still has no automatic right to custody or access to the child by virtue of being the father. By law, the mother is entitled to sole custody of the child if the father has not been made a guardian.

The three-month rule, whereby the father must be living with the mother after the birth of the child for this length of time to quality for automatic rights, is controversial in cases where the mother is in difficulty after the birth of a child or the child is sick after being born. The father cannot make decisions on behalf of the mother or for the child. Many mothers are also concerned about this issue. Expectant mothers who want to prepare effectively for the arrival of the child are anxious about the legal entitlement of the father in this situation. If we granted fathers automatic rights at the time of registration of birth, these rights could then be challenged in court if a mother or the State is concerned about the welfare of the child. We should have higher expectations of men in this country. Other jurisdictions grant automatic rights to the father who signs a birth certificate, such as Northern Ireland, Britain, other European countries and Australia.

Critically, there is no central registration system for the documents signed by fathers. The signed document is not protected by a particular Department and is not logged or acknowledged. The onus is on the father to retain the document and keep it safe in case he ever has to assert his rights and use it. The loss of documents can be devastating for a father trying to prove guardianship.

While the Bill focuses on the child's specific relationships in the family, we must take into account what Dr. Geoffrey Shannon stated: that the Bill should be taken in tandem with structural reform. It is important to make the courts more accessible and child-friendly. While the Bill recognises the changing structure of families and gives a legal definition with regard to the best interests of the child, there is an onus on the Government to look at the wider elements of its powers to ensure children are supported. The Government must examine the maintenance of welfare supports, including supporting one-parent families even after the youngest child reaches the age of seven. When measured against the Bill, this could have a potential negative impact on families. We must also ensure that there are proper antenatal care services. Services for pregnant women in Donegal are being withdrawn from outreach clinics. This has an impact on family life and the equal treatment of families throughout the country. We need to protect the lives of adults who look after children. These are all wider societal issues. If we are going to build a society which allows human flourishing we need to examine these systems also.

The Bill is very welcome. It recognises that the concept of the family has changed and is fluid. If we go back far enough, the traditional nuclear family was probably not what was envisaged for evolving animals. There has been a change and we must recognise it.

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