Róisín Shortall (Dublin North West, Independent) | Oireachtas source

I suggest that given the very tight timescale to which the Minister is working, that many Members of this House have not even had a chance to read the Bill let alone take advice on it. That is not an adequate way to deal with far-reaching legislation. That is regrettable, and the Bill will be weaker for that. The conclusions people come to will be weaker because of the inadequate time that has been allowed for debate.

The Bill contains a number of very progressive provisions that are very much to be welcomed. Reform of family law has been outstanding for several years and is now being finally tackled. Certain issues that should be in the legislation are not in it. The principal one relates to surrogacy. It does not make any sense whatsoever to have taken that very major issue out of the legislation. The original intention of the then Minister, Deputy Alan Shatter, was to include surrogacy in the Bill. It is not a good idea to remove it and to transfer it to the Department of Health. Surrogacy should have been dealt with in the context of the Bill because while there are significant health issues involved in terms of the regulation of the area, there are also significant legal and justice issues which come into play. It would have been much more satisfactory if that had been dealt with in the context of this legislation, which was the original intention.

Aspects of the provisions outlined are a matter of some concern. My main concern relates to the treatment of unmarried fathers. There is a small provision for unmarried fathers in terms of guardianship where they have been living with the mother of their child for a minimum period of 12 months, three months of which must be following the birth of the child. I find it very difficult to understand the thinking behind the provision. What is regarded as best practice, and what is done in many countries, is to provide automatic guardianship for the father of a child. That is the case where the paternity of the child is not contested and both unmarried parents register the birth of the child together. I refer to cases where parentage is not disputed and both parents accept responsibility for the child. I cannot see any reason whatsoever why the father of a child would not have automatic guardianship.

There has been much talk about the best interests of the child. The best interests of the child is that he or she is cared for by two loving parents. Where parents are more than happy to be registered as such and want to play a role in their child’s life, that should be absolutely respected. Not only that, it should be encouraged. We are very good in this country at sending out very negative messages about fathers. We make it very difficult for unmarried fathers to play an active role in their child’s life. For example, last year’s budget provision cut the tax relief available to unmarried fathers, as it was in most cases. Even where a single-parent allowance was not being used by the mother it could not be transferred to the father. Again, a very negative message was sent out to unmarried fathers that they are not wanted on the scene and they are not recognised as having a role in their child’s life. I am very disappointed the Minister has taken that approach. It is very easy to demonise unmarried fathers. Some of them are not interested in playing a role in their children’s life and some of them play a destructive role, but they are the few. The majority should not be demonised because of the behaviour of the few. When summing up on Second Stage could the Minister explain why a father should not have automatic guardianship rights simply because he is not married to the mother of his child? I cannot see any rationale whatsoever for that. In fact, it is very damaging to fathers. It sends out a very negative message that fathers do not have a very important role to play in their children’s lives and that they are somehow second-class citizens by virtue of being unmarried. That is not acceptable.

When the Special Rapporteur on Child Protection, Dr. Geoffrey Shannon, examined the issue and reported in January 2011, he said it was critically important to extend automatic guardianship rights to unmarried fathers and that the State should consider implementing the procedural reforms recommended by the Law Reform Commission to give effect to automatic joint parental responsibility. It is very important that we expect fathers to play a responsible role. That sends out a very clear message; that fatherhood is important. It is critically important from the point of view of a child that he or she would have the care, love and attention of both parents. But it is also important that the message is sent out to all fathers that the State values the role of fathers, irrespective of whether they are married or unmarried.

When the Joint Committee on Justice, Defence and Equality examined the issue, it recommended automatic guardianship for fathers and joint guardianship. The Minister owes the House a clear explanation as to why she has ignored the advice of Dr. Geoffrey Shannon, the Law Reform Commission and the Joint Committee on Justice, Equality and Defence. I see no justification whatsoever for the approach being taken by the Minister. Could the Minister explain the reason the regulations relating to previous legislation on compulsory registration at birth have not been signed yet? A commitment was given to ensure compulsory registration of the names of both the father and mother on a birth certificate but the regulations to underpin the legislation have not yet appeared.

The restrictive route taken by the Minister in the legislation in terms of the 12 month cohabitation requirement is very much an outlier. It is out of line with what is happening in many others countries, for example, in Northern Ireland, the United Kingdom, Australia and many other countries where a clear position is set out that values fathers, and states the importance of the role they play in children’s lives, in recognition of the commitment in the UN Convention on the Rights of the Child that all children have a right to know, and as far as possible to be cared for by, both of their parents. That happens in other jurisdictions and there is automatic guardianship for fathers in that situation.

Could the Minister also respond to a point that was made to me recently, namely, that under the Good Friday Agreement there is a commitment to ensure that all of the rights enjoyed by citizens in Northern Ireland are also enjoyed by citizens here and vice versa?

In this regard, the Minister might explain why she proposes a very different policy from that which obtains in Northern Ireland in respect of the rights of unmarried fathers and, by implication, the rights of children of unmarried parents. The unfairness of the way in which unmarried fathers are treated is exacerbated by the constraints imposed by the in camerarule for family law cases. Anecdotally we know many fathers have felt very hard done by, and there is a lack of accountability with regard to the treatment of unmarried fathers in the courts because of the in camera rule.

Many fathers mistakenly believe that if they put their name on their child's birth certificate it somehow conveys a right to guardianship, but this is a mistaken belief because it is not the case. It is important the Minister commits at the very minimum to providing information to fathers in these circumstances to let them know they must take further steps if they are to have guardianship rights. This information should be provided at the registration of the birth, and an information sheet should be available to fathers to let them know merely putting a name on the birth certificate is not sufficient. According to Treoir, a majority of parents and professionals mistakenly believe the father's name on the birth certificate gives him guardianship rights, and this gap in information needs to be addressed.

Regrettably, many fathers will still have to resort to the courts if the mother does not agree to sign a statutory declaration. We heard Deputy Shatter speak about this last night and on the media this morning. Unfortunately, there are many situations where children are used as pawns in serious disagreements between their parents. It is highly unsatisfactory that children are caught in the crossfire in a dispute involving their parents. It is not good for anybody that this should be the case. A court can be a very confrontational arena in which to resolve some of these issues. In practice, many fathers give up because they know the odds are stacked against them.

The Law Reform Commission recommended a central register where provision is made for joint guardianship, as did the Oireachtas Joint Committee on Justice, Defence and Equality. If a statutory declaration for joint guardianship is signed but is subsequently mislaid or destroyed, there is no evidence of the fact the father has guardianship rights. Treoir states this can have dire consequences, such as the father losing contact with his child, particularly when a mother changes her country of residence, or the father not being able to consent to medical treatment for his child. The Bill should make provision for the establishment of a central register for joint guardianship agreements to keep a record of statutory declarations agreeing guardianship rights. I ask the Minister to respond to this specific issue. Will she commit to providing a register of statutory declarations at a very minimum?

The Bill makes provision for many family types, which is very welcome, and constitutional protection will be provided for families based on heterosexual and same-sex marriage if the referendum passes. However the Bill does not provide protection for the children of non-married couples and will not bestow rights on non-married fathers. This is a significant problem with the legislation. The Bill goes into much detail about the register to be set up to keep a State record of donors in the case of assisted reproduction, but it will not put in place a record of statutory declarations providing for the rights of guardianship of unmarried fathers. This beggars belief. There are major gaps in this regard. In the rush to provide for other family types, I am concerned the Minister has not addressed the issue of unmarried fathers and their rights.

Other issues come into play on the register of donors with regard to gametes. This register will be very important but I am concerned about the lack of provision for how it will be handled. The Bill speaks about the register being accessible by the Minister for Health. I wonder who in the Department of Health will handle this. What are the protections with regard to confidentiality? What are the protections with regard to the provision that when a person conceived through assisted human reproduction reaches the age of 18, he or she can request a copy of his or her birth certificate? The registrar must notify the person there is additional information on his or her parentage and this will place a significant responsibility on registrars. It also opens up the possibility of significant family issues arising for the person. I am not satisfied it has been adequately considered under the legislation. There is potential for major difficulties to be caused within families unless it is very sensitively handled. I hope the Minister will be open to amendments as the Bill works its way through the House and the Seanad. In particular, I ask her to respond to the questions I have asked on the rights of unmarried fathers.

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