Denis Naughten (Roscommon-South Leitrim, Independent) | Oireachtas source

I welcome the opportunity to speak to the Bill. I also acknowledge that the Minister is present to hear the debate, which is important. This is important and far-reaching legislation which is long overdue. Nevertheless, I have concerns that we are rushing the legislation. It is a complex Bill and some of its unintended implications have not been thought through. I am afraid we may have to revisit this with amending legislation because of unintended consequences arising from us rushing this. The Bill was published last week, for example, and we are dealing with Second Stage today. It is an extremely complex Bill that is amending other primary legislation, which makes it very difficult for anybody, even those with parliamentary skills, to read the legislation. I will return to this later. With the issue of guardianship, for example, it would have been far better to repeal current law and incorporate all the provisions of guardianship into this legislation. We could then have had one clear and distinct piece of legislation dealing with the issue of guardianship rather than having amending legislation.

I grew up in a typical family and I am raising my own children in a typical family. There are many other types of family, including those with single parents and widows and those involving same-sex marriage or adopted children. Approximately one in three births in this country is registered outside marriage, with approximately a quarter of children in the country outside the typical definition of the family as interpreted by the Supreme Court. These families and the children involved attend our local crèches and sit beside my children in their school and every other school in the country. It is wrong that they have been ignored, pretty much across the board, under legislation as it stands. This Bill is long overdue but it will give children the type of protection and rights they deserve and should have had for a long time in this country. It is important that we acknowledge the practical reality of family life in Ireland today and this legislation catches up with that reality.

A child needs a parent or parents who love him or her and who are prepared to care for that child properly. That has to be the primary objective behind legislation such as this, and it must ensure that it can protect those types of parents. I was very taken by a story I heard here before Christmas. A young man called Stephen met his current wife in 2010 and the couple subsequently married. She had a son from a previous relationship and Stephen had never been married prior to that. He did something very unusual in that he took his wife's name after getting married. That surprised me but one can understand the logic, as this would guarantee that all his children would have the same surname.

There are not many people who think that far ahead, but he did.

The biological father of his son has been involved to a certain extent with the boy. Stephen and his wife have encouraged that and sought to develop it. However, the biological father never showed any interest in gaining guardianship of his son. Everything appeared to be going well until Stephen and his wife broached the possibility of Stephen adopting their son. The biological father immediately objected, believing it would infringe and undermine his rights and his access to his son. Stephen subsequently had two other children, a boy and a girl. He is in the unenviable situation that if some of them are involved in a medical emergency or an accident, he can make decisions for his wife and for two of his three children, but he cannot do so for the first son due to the law as it stands. This legislation will enshrine in law the basic rights Stephen will have in respect of all of his children, and all of them will be treated equally. All of them have the same surname. He ensured that in a particular and determined way and I am glad this legislation is catching up with Stephen's forward thinking at the time he got married.

We must look at all of these cases from a child's perspective, not just the legislative perspective. A child grows up in a family unit. To them, it is their family and their home. However, everything is turned on its head when something happens with regard to the child's legal guardian. It is interesting to recall the case of baby Ann that came before the Supreme Court some time ago. The two year old baby girl was returned to the custody of her birth mother following the decision of the Supreme Court. The mother was unmarried at the time the original adoption papers were signed. She later married the father of the baby and withdrew her consent. That two year old baby was taken from what she understood to be her parents. It must have been heart wrenching for all of the people involved, both the birth mother and the adoptive parents, to see the two year old girl being taken from what she perceived to be her home. I happen to have a two year old daughter. To contemplate that she would be taken from our home and moved somewhere else would not sit well with anybody. However, that is the law at present.

The legislation is in place since the 1960s and is completely outdated. The most significant element of this legislation is not those legal aspects but, more importantly, that it enshrines the principle of the best interests of the child. That must be sacrosanct in both this legislation and any other legislation brought before the House in future. I commend the Minister, Deputy Fitzgerald, and the former Minister, Deputy Shatter, for bringing that through in the children's referendum and enshrining it in our Constitution. It is paramount in respect of decisions on guardianship, custody and access, which is what this legislation provides for. The current law is seriously lacking in that area.

It is also relevant to other issues, including cases we have discussed previously in the House such as the Kelly Fitzgerald case. The report on the death of Kelly Fitzgerald raised the issue of the lack of consideration of the views of the child, which were not taken into account at that time. Those same issues were raised again in the Roscommon neglect case, where the views of the child were not taken into account. In those two cases there was a family, as defined and interpreted by the Supreme Court, involved. I have no doubt that if the issues in those two specific cases had arisen outside of that clear definition, the authorities would have taken a very different approach at the time. We must put the focus back on children.

It is also important that children have the right of access to their father. This is where the legislation is weak and must be strengthened. Fathers will not have rights to guardianship unless they have been cohabiting with the mother for 12 months, with a minimum of three months after the birth of the baby. In other jurisdictions such as Northern Ireland, Britain, other European countries and Australia unmarried fathers have an automatic right to guardianship when they jointly register the birth with the mother. This legislation must be amended in that regard. The vast majority of parents and, indeed, of professionals believe that once the father's name is on the birth certificate, it automatically confers on him rights in respect of guardianship. That is not the case. Whether it is consent for medical treatment or something as simple as permission for school trips, guardianship is not automatically enshrined on foot of having one's name on the birth certificate.

Deputy Stanton argued last night that one could not give automatic rights to the birth father because of matters such as domestic violence and rape. However, these matters also arise in other family types, not just in one parent and unmarried families. A more practical approach has been taken by the Civil Registration (Amendment) Act that was passed by the House last year. Under that Act it is compulsory to have the father's name on the birth certificate, except where the father cannot be traced or it poses a risk to the mother to make contact with the father. It should be the case that a father would have automatic rights to guardianship, except in particular circumstances where there are issues with domestic violence or rape. Such rights should be automatic and let the courts stop somebody who should not have such guardianship, rather than a father being forced to go before the courts to secure the right to guardianship.

As I said earlier, the Minister should have repealed the Guardianship of Infants Act and introduced new primary legislation. The Guardianship of Infants Act has been amended on two occasions prior to this and there are significant amendments to it in this legislation. That will cause more confusion. It will make the information less, rather than more, accessible. I believe the original intention was to repeal that Act, and it should be repealed during the passage of this legislation.

Another issue has arisen in respect of guardianship. There is a need to have the joint guardianship declaration that is signed by both parties registered and recorded on an official database which is accessible to those who require that information. One cannot expect a father to carry his guardianship declaration with him 24/7 in case one of his children is caught in an emergency and the mother is not available to deal with it at the time.

A national database needs to be put in place. Legislation to establish a national register of wills was proposed by my colleague, Senator Terry Leyden, in the Seanad a number of years ago. It is surely not too difficult to use the expertise and skills available in the General Register Office in County Roscommon to put this register in place.

Part 6 of the Bill amends the law on maintenance of spouses and children. This area also needs to be re-examined. Fathers should have an automatic right to guardianship except in particular circumstances, that is, where it is not in the best interests of the child. Fathers also have a responsibility to maintain their children. A contribution relative to their capacity to earn or to their income, no matter how small, should be made by all parents. I questioned the Tánaiste on the figures on maintenance recovery within her Department. The figures were interesting. Last year, the Department examined more than 8,000 cases and of those, it determined some 2,500 relatives were liable to make a maintenance payment. Only 54% of them did. We need to be far more active in ensuring the recovery of maintenance and in ensuring that fathers are responsible and provide maintenance for their own children.

We need to properly resource the courts system. I welcome the introduction of penalties where access is denied to the other parent. We also need to look at the issue of maintenance and how we can ensure proper maintenance is provided. This legislation is positive and is a welcome development. It does, however, need to be strengthened before it is enacted.

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