Dessie Ellis (Dublin North West, Sinn Fein) | Oireachtas source

Cuirim fáilte roimh an mBille tábhachtach seo.

It is the case, and has been for quite some time, that the family as understood by those who framed our Constitution and those who were at the helm of the State for decades is a faulty, outdated and ultimately useless idea which betrays more about the social conservatism of those who espouse it than it promotes healthy family relationships and good law.

Irish social policy has been profoundly damaging in its approach to families, including children, women and even men, particularly some fathers. This Bill is a major moment for reform of these wrongs but, like all steps in the right direction, it is not without its flaws and limitations. One disappointing thing about the Bill is that we have had to wait so long for something so basically fair, which simply allows people to live their lives and be a family with fair recognition in law. It is particularly shocking that it has taken this long when one considers that the shortcomings of the State in this regard have touched every family in the Twenty-six Counties. We have all been victims to a greater or lesser degree of this prevailing ideology of denial and repression of our humanity when expressed outside the clearly defined lines handed to us by those who were often better at acting piously than living thus.

However, we cannot blame this Government for the failings of previous ones, and so we welcome this Bill. Certainly, it is better late than never to have these reforms. It is unfortunate that the Bill has been introduced so close to the campaign for equal marriage rights for same-sex couples. It has given those who wish to muddy the waters, confuse the public and sow misinformation an opportunity that they have leapt upon. If one only listened to some commentators who are invited on TV and radio to trot out antiquated notions of how men and women should live, one would easily be led to believe that this Bill was seeking to deny children parents, to remove rights from people, and to cast Ireland into some kind of immoral mire on which the sky would surely fall.

The reality is that there always have been and always will be same-sex couples in Ireland. They are no different, by and large, from any other couples and for some time they have been able to adopt, although not formally as a couple. This legislation will formalise their ability to be a parental unit to their adopted children and so provide children with a recognised two-parent family under law.

This is not an insignificant piece of legislation in what it seeks to achieve or the depth into which it goes on these topics, and I understand these things cannot be rushed. With more than 170 sections, it provides an extension of guardianship, custody and adoption rights to different types of family. Couples who live together, regardless of their gender or sexual orientation, will now be able to provide a loving home for a child. That is what family means in 2015. It is not about laws, genes, religious rites or strict ideas of how people should live. It is primarily about a loving home, especially where a child is involved.

The Bill and the ideas behind it are not about gay rights, but about all our rights as equals to have and to be part of a loving family, and to have that recognised and respected rather than denied and vilified for not meeting someone else's code. I also welcome that the Bill deals with leave for parents in cases where leave would previously have been unavailable or difficult to obtain.

Despite all these positives, the Bill fails to go far enough in ensuring fair and equal treatment of fathers in disputes over custody. While adopted children's rights must be protected and enhanced, most of the children who have been affected by Ireland's failure to update family law have been children born to unmarried parents. The problem has not been that their parents were not married but that the State was ill prepared to deal with the legal outworkings of these relationships with regard to custody.

Even when the State had stopped locking up unmarried pregnant girls, it still fell woefully short of treating them fairly and with compassion or including the fathers, their rights and their responsibilities. The birth of children outside marriage is ten times more common today than the last time these issues where dealt with in Irish law in the 1960s. The result of this is a lack of any rights for unmarried fathers. While women in nearly every case in our society are structurally disadvantaged compared with men, in the case of family law, guardianship and custody, men can get first-hand experience of gender discrimination. I believe this is a result of a society that saw child-rearing as women's work, and this attitude has not been updated in our law despite the emergence of divorce and separation rights as well as the increasing number of children born outside marriage. Fathers are now very real victims of this discrimination and so are their children. Conservatives, who said divorce would mean "Bye Bye Daddy," did not know how right they were, but it was their own outdated notions of family, of men and women, and of mothers and fathers that allowed this problem to develop. The law simply ignored how society was changing and the new challenges that it needed to deal with. Governments and the political elite ignored it, as they were also wedded to these conservative notions.

Colette Brown yesterday wrote an excellent article dealing with the issue of fathers' rights. She perfectly described how, on a daily basis, this lack of rights impinges on a father's ability to care for his child and damages the child. She wrote:

It means that if your partner is away and your child falls ill, you cannot authorise medical treatment. It means that if your relationship breaks up and your partner decides to move abroad with your child, you are powerless to stop her. It also means that you have no automatic right to custody or access to your child. By law, the mother is entitled to sole custody of the child if the father has not been made a guardian. Imagine a worst-case scenario in which your partner dies and you are left alone to care for your child. You would have to mount a court battle just to be entitled to care for your own child.

This is not a new story. We have all heard of these battles by fathers over the years to have the right to be a parent to their child, but it has taken a very long time and still we have not concluded the matter. I welcome that the Bill seeks to address this issue. Unmarried fathers will be now given automatic guardianship rights if they have lived with their child's mother continuously for a year, including three months after the birth, but why should we have such a specific cohabitation requirement that would seem to rule out many fathers who should have that right? In 1982 the Law Reform Commission advised that there should be an automatic right to guardianship, yet 33 years later we still cannot even do that. This is not equality and perpetuates discrimination against unmarried fathers. The Minister describes this as a test of responsibility, but in some cases, for a father to have his own place separate from the mother in order to keep their child from the difficulties they may have is often the most responsible thing he can do. An unmarried father's rights should not hinge on his ability to live with the mother of his child. In other cases it is simply not a possibility. The Bill operates in a reality completely separate from the one in which we live - in the midst of a housing crisis where young people cannot find housing for any reasonable price or quality in most cases. Should the conditions of the home suffer so that a father can cohabit in order to get his right to guardianship? This requirement has the potential to cause much familial strife and strain. Fathers, whom this Bill will not help, can supposedly be given rights through a statutory declaration, but there is no register of these documents in place and no plans to have such a register. Resources, as always, are to blame. Sinn Féin has been clear on this issue. We need a register to provide protection for the statutory declaration documents that grant guardianship rights to unmarried fathers in respect of their children.

Sinn Féin has raised other issues with this Bill which we will seek to correct on further Stages. The family law courts are in need of serious reform and modernisation as well as better resourcing. At present they are not equipped to deal with the increasing number of family law cases that arise. Low-income families also must be provided with better access to the courts in cases in which they do not fall into the bracket to qualify for free legal aid.

We also want to see the establishment of a comprehensive court welfare service. This would organise the carrying out of assessments of a child's welfare and best interests and ascertain his or her views, while also carrying out family risk assessments. It would also ensure, where appropriate, that supports and services are available to the child and family, such as mediation services and child contact centres.

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