Barry Cowen (Laois-Offaly, Fianna Fail) | Oireachtas source

As the House knows, Fianna Fáil has indicated we will support this Bill. It is a Bill which seeks to centralise the best interests of children rather than continue with the constraints of existing legislation, which leaned heavily in favour of the traditional family. We all recognise that the conventional family, unfortunately, is no longer the functional family in many cases, and the onus on legislators is to take cognisance of that and to amend legislation appropriately.

We have learned in recent years the distance there has been between children and the Legislature in terms of many aspects of governance, in particular care facilities where the State's involvement was not as it should have been, to the great detriment of many children and the detriment of many people's health, mental health and so forth.

We have had much cleansing in recent years and an acknowledgement of the failings of the system and State. There has been whole-scale recognition of those facts. The onus of responsibility once that is completed and recognised shifts to those in positions of power and representation in this House. We have an obligation to appropriately amend legislation and take cognisance of the lessons we have learned. This Bill is no different.

While we support the Bill, some elements of it need to be questioned and teased out, and there needs to be a proper, open and frank debate before an informed decision can be made to improve it and its child-centred thrust. It is worth noting that in January 2012 the first scheme of the Bill was published by the then Minister, Deputy Alan Shatter. It is unfortunate that some confusion may exist in respect of this Bill and the upcoming referendum on marriage equality. I do not see that, and it is unfortunate that it is the case. A recent television programme highlighted the confusion that may exist. The onus of responsibility lies on the Government to create clear daylight between the two. It is not an easy task. It is unfortunate that the two are coming so close together and that the publication of the Bill and its content only came to light a week before we began to debate it. I ask the Minister to be careful and considerate in the manner in which the Second Stage debate takes place and the various amendments to existing Acts, such as the Adoption Act 2010 and others, are discussed. We need to put clear daylight between the Bill and the amendment to the Constitution to give equal rights to those same sex couples who wish to enter into marriage.

The Bill addresses key issues in respect of guardianship, custody, access, maintenance, adoption, parentage and assisted human reproduction. It is unfortunate that the Minister's intentions in regard to surrogacy, such as banning commercial and other forms of surrogacy which are questionable, have been removed from the Bill and require separate legislation. If we had debated and passed the Bill a year ago, clearer daylight could have been shown to exist. We have to recognise where we are at and the responsibilities the Government has. Its intention to address this issue needs to be made clear and concise in order that people can easily understand what the Bill involves and will be under the impression that those matters will be dealt with sufficiently and efficiently, and that there will be no duplicity or confusion around what is proposed.

I refer to the impact of the Bill on vindicating the rights of unmarried fathers. That may require more debate and amendments from the House in order to strike the right balance. I know there are conditions in respect of the sort of guardianship rights that would extend to natural parents by virtue of their relationship with the mother. One section of the Bill which deals with this issue refers to the various criteria under which applications for guardianship and custody can be made. We have to allow for different situations to be interpreted in different ways. That can be difficult, but there needs to be a clear provision in the Bill which will provide guidance to the courts on the decisions which are made.

The heads of the Bill detail the amendments required to various Acts. It is interesting to examine them and the efforts made to address these issues. Perhaps previous Governments did not think we would face the current situation. Despite the conventional family systems that have evolved, their functionality was a different matter. The Guardianship of Infants Act 1964 is being repealed in its entirety. The Family Law (Maintenance of Spouses and Children) Act 1976 will be amended. There are elements that need to be elaborated on in order to ensure that no errors are made. Deputy Doyle commented on certain circumstances on which we need clarity and certainty so that when situations arise they can be interpreted by the courts. The Status of Children Act 1987, the Family Law Act 1995, the Status of Children Act 1987 and the Adoption Act 2010 will be amended. The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 will be addressed. There will be a referendum on marriage equality arising from that. People like to imply that there is confusion. Unless the Minister and House address the confusion that is out there, people will take advantage of that and it will affect the result of the referendum.

The Bill will implement provisions of the UN Convention on the Rights of the Child by protecting the rights to family life in respect of Articles 5,9, 10, 18 and 20. It will protect the children of unmarried parents from discrimination based on their parents' marital status, which is to be welcomed. It is amazing to think that was not the case heretofore. Be that as it may, there is an obligation on Members of the House to address that, having learned from, recognised, acknowledged and, in many instances, apologised for the mistakes of the past. We are now bringing our legislation and Constitution in line with the people's views and the lessons that have been learned.

The Bill refers to ensuring that the best interests of the child are paramount in the consideration of decisions on guardianship, custody and access. The conventional family make-up was predominant in previous legislation, not just in this country but in many others. We have followed the lead of the recommendations on the UN Convention on the Rights of the Child. Providing children with the right to have their voices heard as part of the best interests determination regarding guardianship, custody and access reflects the rights of child. We will be allowing a child's voice and views to be heard and appropriately deliberated on by the courts on foot of the Bill.

On the whole, there is broad consent on our part in regard to the thrust of the Bill and much of its content. Individuals would like to question some issues and table amendments. I have no doubt that the Minister, in line with previous proposals, will be open to those considerations and offer the advice of experts within the Department to assure Members on many aspects of the Bill.

This is an important part of any legislation, and most important when dealing with the best interests of children, who do not necessarily have a direct voice in the House, although they have a representational voice in all of us. The best interests of children must be served and the eventual decision made by the House must be well informed, not only on the basis of what has gone on previously and historical reasons but, more important, on the basis of legal expertise to give effect to the wishes of the House in order that we will not have to debate such issues in future. That would do a great service to those whom we represent and, in particular, the children. They have no choice in the sort of family circumstances they are in but they have every right to express their views on what they believe to be in their best interests. That is the most important aspect of the legislation.

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