Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

In fairness, I am acknowledging that it is a positive development.

I will outline what the Bill covers. While much of the debate today has dealt with and focused on the adoption provision for same-sex couples, the reality of the existing adoption law and current practice is that a sole applicant can be considered for an adoption order. That has been the case since the Adoption Act 1991. In that Act there is no reference to the sexual orientation of the applicant, so a sole applicant in a same-sex relationship has been eligible to apply for an adoption order for the past two decades, subject to his or her having the capacity to parent a child into adulthood. This Bill is reflecting in law what is currently happening in practice.

Listening to comment in the media, however, one would not think that was the case.

The most reforming provisions and the most substantive content of the Bill are in the area of guardianship. It is important that clarity be brought to the assignment of parentage in different types of family. The reality is that there has been a lack of clarity on the status of children and parents who do not fall within the traditional family setup. The most significant innovation is the provision for a court-appointed guardian. This Bill will ensure that children in non-marital and non-traditional families will be in a position to enjoy a legal relationship with the person who provides them with day-to-day parental care. The new guardianship provisions extend parenting rights to four categories of person: step-parents, civil partners, cohabitees living with a biological parent for three years and co-parenting the child for two years, and people in loco parentisfor a period of 12 months where no other guardian is able to act. For cohabiting parents, the requirement is that they must have been living together for three years and co-parenting for two years. I understand that guardianship is automatic for civil partners. Will the Minister clarify this? The provision relating to people acting in loco parentisfor 12 months benefits grandparents and aunts and uncles who are providing care. These are family members who step in when there is a derogation of duties or the care is substandard or not provided at all. It would be helpful if the Minister were to provide clarity on the parameters of this relief.

What happens to a grandparent who provides care for 12 months and successfully applies for guardianship if, after a number of years, the original or biological parent, an alcoholic or drug addict dealing with substance abuse who could not provide care, is rehabilitated? This parent is now in a position to resume care of the child and wishes to provide that care. The parent wishes to exercise his or her constitutional rights. Will the Minister confirm what happens in terms of guardianship in such an instance?

The provision dealing with temporary guardianship is also interesting. This will occur where a parent is incapacitated for a period of time - for example, as a result of serious injuries sustained in a car crash - and is unable to parent the child. My understanding is that a temporary guardian can be appointed where it is proved to the court that the parent is incapacitated and that the applicant for temporary guardianship is a fit and proper person to parent a child. I imagine that this will eliminate the need for certain children to enter the care system. If a sibling of a parent were to make an application for temporary guardianship, it would alleviate the need for State intervention. If this is the case, it is to be welcomed. At the moment, there is a chronic shortage of social workers. Further, State intervention should only occur in family life where there is a genuine need for child protection services. I have always stated that it should be a last resort. Will the Minister confirm whether my thinking on temporary guardianship is correct?

The legislation provides for the voice of the child to be heard in all legal proceedings and places the best interests of the child at the centre of such proceedings. These are provisions on which we voted two years ago in the children's rights referendum. I welcome the elaboration of the best interests test set out in the Bill. This should lead to greater transparency in judicial proceedings. The current level of inconsistency in judicial proceedings is a major concern. Although the in camerarule may have been relaxed, we need greater reform of our court system and, in particular, of our family courts. This promise was made in the programme for Government, and a Bill on court reform is in the Government's legislative programme. While I welcome this legislation, its full implementation may not be possible without broader family court reform. The Minister might address the need to reform the family court system in her concluding remarks. I am sure the Minister agrees that there is a need to reform the family courts, and I hope that such reform will be prioritised.

The Bill provides for a child expert who will reflect the views of the child in all court proceedings. I am concerned that the appointment of such an expert is left at the discretion of the courts. Further, the cost of the expert must be paid by the parties to the proceedings. Does this mean that children whose parents cannot afford a child expert may be excluded from the decision making process? This is my reading of the provision. This Bill seems to favour those with financial resources and potentially discriminates against low-income families. It is, arguably, in breach of a constitutional requirement on which we voted in November 2012 when we enshrined the rights of all children in our Constitution. These rights should apply regardless of means.

I am surprised that there is no reference to the "GALs". This would have been an opportunity to streamline the system of guardiansad litem. The costs to the State of guardians ad litemare excessive. This would have been an opportunity to bring in comprehensive reforms to ensure an effective and efficient service which would genuinely serve the interests of the child. This needs to be addressed urgently.

The Bill also amends the Family Law (Maintenance of Spouses and Children) Act. I am delighted to see the provision ensuring that a guardian is liable to provide maintenance, because with rights come responsibilities. This is very important.

The Bill also includes far-reaching provisions to make parenting orders work. At the moment, a parent who breaches a court order cannot be sanctioned other than through criminal law. This introduces a compensatory time provision requiring a parent who breaches the access order to compensate the parent whose rights have been infringed with additional time. This should help eliminate unnecessary litigation and is a welcome provision.

I welcome the fact that a national register of donor-conceived persons is included in the provisions dealing with assisted human reproduction. I have constantly underlined the importance of a child's right to his or her identity.

The Minister will know this from her previous role as Minister for Children and Youth Affairs. I have spoken about the Adoption (Information and Tracing) Bill and a child’s right to his or her identity. It is very important and this provision is welcome.

The basic rights of children conceived through assisted human reproduction are consistent with Ireland’s obligations under Articles 7 and 8 of the UN Convention on the Rights of the Child.

I am somewhat disappointed by the manner in which unmarried fathers’ rights are addressed in this Bill. The Bill does not comprehensively address the right of a child to know and have a relationship with the biological father. The provision of automatic guardianship applies where the biological father has been living with the mother for 12 consecutive months, three of which must be after the birth of the child. There are a number of problems with this provision. The first concerns the definition of "cohabiting". Does it involve a couple who share a room or house for three or four nights per week? Will it be specified that a couple needs to be sharing a house for seven nights a week? Is that cohabiting? Must the couple be joint owners of a property or hold a joint lease? What exactly is cohabiting? I do not know, and I stand to be corrected, but it does not appear to be defined in the legislation. The lack of a definition is a weakness and there could be court cases unless this is addressed.

The legislation seems to revolve around the father’s relationship with the mother rather than with the child. Surely, when talking about legislation that pioneers the best interest of the child, the focus should be on the relationship between the father and the child. I know, and am sure the Minister knows, many cases in which a father and mother have an outrageous, unbelievably bad relationship, but that does not make either a bad person. The legislation concentrates excessively on the relationship between the father and mother.

Under the current legislation, on the birth of the child the unmarried father and mother can agree the appointment of the father as a guardian. Unfortunately, there is no central register of such declarations. I support the call from Treoir for the establishment of such a register. Given the significance of guardianship, it is imperative that there be a central register to ensure such declarations are maintained.

The legislation should go further, as suggested by the Law Reform Commission, by providing automatic guardianship rights to all biological fathers, except in exceptional circumstances, having regard to the relationship and circumstances of the birth. I refer to phenomena such as rape. We can all agree that a father should not have an automatic right in the case of rape, for example. Beyond that, however, there should be an automatic entitlement to guardianship.

The presumption should be in favour of granting a right of guardianship to all fathers, but this should be retractable in cases of rape and other such cases. For the legislation to be effective, and as suggested by the Law Reform Commission in its consultation paper on this issue, there should be a compulsory requirement to name a father on the birth certificate. This would ensure that rights given are commensurate with responsibilities. The Minister for Social Protection alluded previously to the fact that it would be a requirement to name a father on the birth certificate.

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