Martin Heydon (Kildare South, Fine Gael) | Oireachtas source

I welcome the opportunity to speak to the Children and Family Relationships Bill and commend the Minister, her predecessors and officials in the Department on the extensive body of work that has gone into this legislation which will have a seismic impact on a range of different elements involving children and their relationship with parents, guardians and families in general. There has been much discussion of this Bill, particularly with reference to the upcoming marriage equality referendum. However, this Bill is about so much more than just provisions relating to that referendum and I wish to focus on those today. This Bill is about bringing our legal system up to date with the many different types of families that we now have in society. In that sense, it is long overdue. It is a means of recognising the diversity that now exists within family structures, many of which can be complex and can change over time but which are still defined as modern families.

As a new father, I am acutely aware of the rights of fathers. What many people may not realise is that unmarried fathers do not have an automatic right of guardianship to a child and are essentially at the mercy of the child's mother to ensure guardianship is recognised. In the majority of loving cases, this works well, but there are many examples of cases where fathers lose out. In many cases, the only fathers who really become affected by such issues are those where a relationship has broken down with the mother. The split may be irrevocable, and the parties may not even get on well enough to arrange some kind of system. In that case, the odds are very much stacked against the father. I welcome the provisions in this Bill to provide automatic guardianship to unmarried fathers but we must reconsider the detailed rules for cohabitation. The current requirement in the Bill is for a father to have cohabited with the mother for 12 consecutive months to be automatically considered a guardian, at least three months of which must have occurred after the birth. The Bill wishes to give equality to fathers and mothers with respect to guardianship but the cohabitation requirement may lead to disadvantage or exclusion, in some cases, for fathers in particular.

I note the report of the Ombudsman for Children on the general scheme of the Bill from May 2014. At that stage, she welcomed the extension of automatic guardianship to unmarried fathers but questioned the use of the 12-month cohabitation clause. Her report indicates that although it is clear why a cohabitation criterion would be considered in the context of drafting the legislation, it is not clear why it should be decisive for the purposes of automatic guardianship as "there is a range of situations in which a father would clearly wish to become a guardian but would not satisfy this criterion". That report goes on to indicate that the European Court of Human Rights has consistently stated that family life can exist between a father and his child irrespective of the cohabitation arrangements of parents. The ombudsman's report instead supports the recommendations of the Law Reform Commission from 2010 with respect to the issue and notes that similar reforms were introduced by the Welfare Reform Act 2009 in the UK. For these reasons, the ombudsman recommends that the cohabitation period required for the conferral of automatic guardianship on unmarried fathers should be removed and the link to joint registration from the Law Reform Commission should be reconsidered. Will the Minister review this part of the Bill to see if the cohabitation clause can be amended or removed to be more in line with recommendations of the Law Reform Commission?

While speaking about the rights and responsibilities of fathers, I also wish to touch briefly on maintenance payments. With parentage and guardianship also comes responsibility. I acknowledge the extension in this Bill of potential maintenance liabilities on parent civil partners or a cohabiting partner who is the guardian of a child under 18. However, we must also ensure that parents pay their way and sufficiently cover the needs of their children where financially possible. It is sometimes far too easy for fathers to walk away from responsibilities and leave all the pressure on a mother and other family members, or even the State.

Another aspect of this Bill I welcome in particular is the granting of guardianship to grandparents and other blood relatives of a child where they essentially act as parents for family and personal reasons. I met a number of grandparents in my office in south Kildare who are essentially raising grandchildren, and they are very happy to do so. The red tape involved in getting custody and guardianship adds stress where it is not needed. Grandparents and other family members will now be able to apply directly to the court for access rather than having to go through the existing two-stage process whereby they have to apply to the court for leave to make an application for access. I also welcome the measures in this Bill to promote compliance with court orders on custody and access. I have come across a number of cases recently where fathers have had to fight to receive custody and access rights that have been legitimately awarded to them through the courts. That is not right and it makes an already stressful scenario even worse.

I will refer to the section which gives step-parents the opportunity to become guardians. My father died when I was eight and, ten years later, my mother remarried. I had a very close bond with my stepfather, so I know what I am talking about in this respect. The role my stepfather played, albeit when I was an adult, was important. I welcome the provision which recognises step-parents and the role they play in children's lives. We must be very conscious of a different scenario where a step-parent exists while a blood parent is still alive and taking an active role in a child's life. That is a more complex are that needs specific consideration. These roles are not the same and granting rights and guardianship to a step-parent should never usurp the right of a parent where he or she still wishes to be involved in a child's life.

There is a subsection setting out the responsibilities that can be awarded to step-parents. Are those the same as would apply to a parent? The Bill indicates:

The rights and responsibilities referred to in subsection (9) are the rights and responsibilities to:(a) decide on the child’s place of residence;

(b) make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing;

(c) decide with whom the child is to live;

(d) consent to medical, dental and other health-related treatment for the child, in respect of which a guardian’s consent is required;

(e) consent under section 14 of the Passports Act 2008 to the issue of a passport to the child;

(f) place the child for adoption, and consent to the adoption of the child, under the Adoption Act 2010.

Is there potential for those rights to be conferred on a step-parent when an existing parent is still very much in place? It is important to achieve a balance in recognising the role of a step-parent in conjunction with the role of an active parent where there has been a split. In many cases, fathers split with mothers and a step-father should not necessarily be able to deal with all the above responsibilities without input, in some regard, from an existing father who is taking an active role and interest in a child's life.

Ireland and its families have moved on significantly since the Guardianship of Infants Act was considered in 1964. I am very glad the Government is now bringing forward this important legislation and updating it for the needs of modern Irish families. I have stayed away from the referendum I mentioned at the start of my contribution as I am very concerned that the two elements are becoming muddied. I am delighted this Bill is being dealt with first and that all the different elements can be considered. I commend the Bill to the House and compliment the Minister, her predecessor and her officials on the work on it. I look forward to the Minister addressing some of the concerns I have raised.

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