Joan Burton (Dublin West, Labour) | Oireachtas source

This is an important reforming legislation and as Tánaiste and leader of the Labour Party I have no hesitation in commending it to the House. As an independent State, our record in Ireland in dealing with children and in using the law to protect and enhance the lives and the rights of children has been patchy at best. There have been important pieces of progressive legislation, such as the Guardianship of Infants Act 1964 or the succession provisions of the Succession Act 1965, which imposed an obligation on parents to have regard to the needs of their children when drafting a will. However, there were many dark moments and, indeed, dark decades too, when the State wilfully ignored the rights of children and often connived with others, most frequently religious orders, to deal with what were regarded as “problem children” in ways that most of us in this House would regard as unacceptable at best.

Until 1952, adoption was illegal in Ireland. Instead, we had an informal system of adoption or fostering which operated outside the law. Extra-marital children were often regarded as a problem, something to be swept under the carpet. Even as the law changed in the 1960s and 1970s, social attitudes were slow in changing. It was only in the 1970s that the then Government, and my predecessor as Labour leader, Frank Cluskey, put in place support for single parents and their children in the form of what was then called the unmarried mother’s allowance.

There is one consistent thread which runs throughout society’s view of families and children over this period, and it is a view which is still much in evidence today. It is denial. We so wanted everybody to be living in happy nuclear families that we were very slow to see that many people were not living in "traditional families" at all. As a result, we ignored the family arrangements of hundreds of thousands of our citizens and left countless children in a sort of legal limbo.

In terms of my own experience, I was adopted formally in the 1950s, so I had birth parents. As a baby, I had several sets of foster parents. I was then adopted by my adoptive parents, Bridie and John. When my mum died and my father remarried, I had a stepmother. I had various aunts and uncles who, after my mother died, as they were all single, helped to look after myself and my brother. That is just one story.

While some people suggest they are in some way fearful of this legislation, I do not think they see life's rich tapestry or that not everybody fits into one single structure, as some people undoubtedly would like in order to give certainty to what they see as being the most desirable. At the end of the day, it has always been my conviction that what matters is that the child has people - the parents primarily - who nurture them, love them, care for them and commit to them. That is what really matters in the end for any child.

When we look at the conservative definition of the family in the Constitution, we can argue it made it difficult for the Oireachtas to act. However, since the people passed the children’s amendment to the Constitution in 2012, that argument is no longer available, if it ever was. It is now time for us to open our eyes to what is really happening in our society. The traditional family of one man married to one woman, having children without any need for medical intervention prior to conception, is the norm for most people, and we know that. While it will never be what happens for everybody, which is one of the things we must acknowledge in the discussion around this legislation, it is obviously the preferred option for many people. That is a choice to which they are entitled, but it is not everybody’s choice. Some will choose to bring up children as single parents, some will choose to cohabit and not to marry and some will have children with more than one partner. Some people find their life partner, get married and 60 years later they are celebrating a long, successful and happy marriage with children and grandchildren. We need to look at the circumstances, which can be dictated by the vagaries of life, such as illness, the death of a partner, estrangement, divorce or infertility.

In a small number of cases, the law intervenes to stop people living the lives they would like to live. Gay couples cannot adopt, nor can unmarried heterosexual couples. However, it is unusual for the law to prohibit people from doing things. I remember a conversation I had with a doctor years ago. He was well off and his wife also had a job, but as one of them was a Catholic and one a Protestant, they could not adopt, much and all as they loved children and desired to do it. We need to be conscious of where we have come from and how our society has evolved.

The role of the State is to ensure that, whatever choices adults may make, the rights and well-being of their children are protected and improved, and the children are brought up in an environment of love, support and nurturing. However, the current position is that some children live in something of a legal limbo: take the child whose father has died and whose mother is now living with another partner; the child of a gay mother who is now living with her gay partner; the child who is being looked after by her grandparents because her parents cannot cope; or a child born as a result of donor-assisted human reproduction.

In fairness, we have made some progress on some of these issues in recent years, but not enough. This Bill represents the first real effort in decades to deal with all of these related issues in a comprehensive way. As of today, the only adults who have automatic rights in regard to children are the natural mother and her husband, if he is the father of the child. It is important to say that this will remain the case if and when the Oireachtas passes this legislation, with one important exception which I will come to later. It is true that a variety of other people such as those I described earlier – grandparents, step-parents, gay partners and unmarried couples – will have the right to apply for adoption, guardianship or custody. However, and this is important, in each and every instance they will have to make the case in court that this is in the best interests of the child.

A judge will be required to grant or refuse an application with the best interests of the child at the centre of the decision-making process. In fact, this is the first Bill that has attempted to define the concept of the best interests of the child and it does so in quite some detail.

The Bill sets out several dozen questions, criteria and circumstances which should be taken into account when a decision is being made on the future of a child. These criteria include a requirement to gauge the views and preferences of the child, something I very much welcome. There is absolutely no question of unsuitable people getting automatic rights in regard to children. We have broadened the scope for people acting in loco parentisto apply for adoption, custody or guardianship and we have made it easier for them to make such an application. Any application must be decided by a judge and she or he must make the decision in the best interests of the child. This principle, namely, that the interests of the child are paramount, is at the centre of our law on children, and this Bill reinforces and strengthens it by spelling out in plain English and in great detail what this means.

The exception to which I referred earlier concerns the rights of unmarried fathers. Until now, unmarried fathers were obliged to apply to a court to assert any right to guardianship of their children. This will no longer be necessary, provided the father has cohabited with the mother for at least one year. This is a difficult issue. Some unmarried fathers have argued that they should have equal rights with the mother, but as a matter of fact, however uncomfortable it may be, some unmarried fathers do not commit in terms of interest in their children and often lose contact with the mother before the child is born.

The Government is settled on the view that any unmarried father who is acting in loco parentisat the time the child is born and for a period after that should be entitled to act as guardian to the child without the need for an application to court. Those who are not part of the child's life at that stage will have to apply to court at a later stage if they want to act as guardian. In all the circumstances, this is a fair balance. I know many men who have had a child in a non-marital relationship and who love the child to bits. The most difficult issue is their estrangement or removal from the child because the relationship, which may have started with great hope and love, has withered. This redresses a balance which has long been missing in our legislation.

Another important area addressed in the Bill is donor-assisted human reproduction and IVF, which I welcome. This is a difficult and sensitive area of legislation, but I welcome the fact that, as a Legislature, we are now addressing it.

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