Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I would like to begin by thanking the many Deputies, approximately 60, who contributed to this Second Stage debate on the Bill. I welcome the broad support that has been expressed here for what I believe is landmark legislation for children and families.

Most Deputies who have spoken recognise that the legislation deals with the diversity of family situations in which children live. From a legal perspective, the Bill seeks to ensure that these children and their families will be valued, nurtured and recognised. In addition, the Bill deals with issues including access, guardianship, custody and maintenance, which will be decided with the best interests of the child at heart. There is absolutely no question but that this reform is child- and family-centred. The Bill protects and clarifies diverse family relationships, as well as providing a legal bedrock on which such diversity will be recognised in the courts when they are faced with making decisions on that range of issues.

I thank all who have been involved in producing this legislation. My predecessor, Deputy Alan Shatter, has done so much for family law reform both in this House and outside it. He has ensured that we will have the very best legislation in this regard.

I want to thank the Attorney General and her staff, as well as drafters in the Office of the Parliamentary Counsel. An enormous amount of work has been involved in bringing this Bill to fruition. I pay tribute to the staff of my Department who have been dedicated in developing this legislation, including Conan McKenna, Carol Baxter and Dara Breathnach.

As many Deputies have said, this is a complex piece of legislation. It amends much previous legislation but it also has a number of core principles at its heart. In the course of the debate, the majority of Deputies welcomed those core principles and, in fact, there has been very little disagreement about them.

It took time to devise legislative solutions to what are profoundly complex issues. Many Deputies who spoke recognised the innovative pre-legislative scrutiny of the draft Bill which took place at the Joint Committee on Justice, Defence and Equality. That pre-legislative scrutiny process was introduced by this Government. The joint committee, which is chaired by Deputy David Stanton, invited submissions from everybody interested in the legislation. They had an opportunity to make an input, and some 38 submissions were received from a wide range of stakeholders. The public consultation heard from individuals, interest groups, Members of the Oireachtas, various clinics involved in AHR, lawyers and women's groups, as well as youth and equality organisations.

I thank the committee members for their consideration of all the submissions. They took care in producing a summary document and in the recommendations they made arising from those submissions and the subsequent discussions. I have taken on board many of the recommendations of the Joint Committee on Justice, Defence and Equality. They include, for example, changing the cohabitation requirement for guardianship for non-marital fathers. I note that many Deputies spoke about that matter today and I will return to it shortly.

Some of the committee's recommendations will be dealt with by the Department of Children and Youth Affairs, particularly the issue of step-parent adoption. In the course of discussions on the preparation of the Bill, it emerged that that issue, while appearing simple at the outset, when discussed in detail in that Department and with the Adoption Authority, involved other complex aspects of adoption. It was decided that it would be better to deal with it in the context of adoption legislation itself. That is why it is not in this Bill.

Likewise, as regards assisted human reproduction, it was felt that the Department of Health was doing a huge amount of work in that area, and that is why certain other decisions were taken. I will return to those also.

The provisions on identity for donor-conceived children, which were so strongly advocated by the Joint Committee on Justice, Defence and Equality, and by the Ombudsman for Children in particular, required the development of an entirely new Part 3 of the Bill. Part 3 provides for the national donor-conceived person register, underpinned by robust enforcement mechanisms. Contrary to what has been said here, this is an extremely child-centred provision. It reinforces what many Deputies have said not just in this debate but also in many debates on adoption - that the child's access to identity is critical.

We have moved from a situation where AHR is almost completely unregulated to a situation where, in regard to the parentage provisions, we are insisting that access to information on the genetic identity of the child should be provided for in legislation. That is child-centred and represents a shift away from anonymous donation. There are many issues to be discussed in that regard, and no doubt we will have an opportunity to discuss them.

A number of Deputies have commented on whether the information can be given to the child before the age of 18. Of course the information can be given to the child before the age of 18 if the parents so decide and they have discussed it with their child, as I would expect many parents will have done. The veto is there in very exceptional circumstances where there may be a question over the safety of the child and the donor. The legislation is built on the premise and assumption that the child should have access to his or her identity and the right to that information. That was recommended by the committee.

We also received many submissions from people who were concerned about the issue of retrospective parentage of donor-conceived children, which I can understand. We have introduced a number of provisions to allow a birth person's partner to become the parent of a donor-conceived child retrospectively through a court-based procedure if certain conditions are fulfilled. The legal advice I got was that a court-based process was necessary in order to do this if we were awarding parentage retrospectively. Deputy Shatter raised this point. We would not have been able to rely on the presumptions of parentage included in the first draft of the general scheme. I have taken legal advice throughout the process on these provisions.

I wish to deal with some of the most common issues Deputies raised during the debate. Many Deputies expressed concern about the guardianship rights of unmarried fathers. I reiterate that many unmarried fathers will benefit greatly from the provisions, allowing them to become guardians of their children automatically. Many unmarried fathers obviously live with the mother of their children. All of these parents will now have automatic guardianship. That is a strong change from the current situation. In the legislation, a father who cohabits with the child's mother for 12 months, including three months with the child following the child's birth, will be a guardian automatically. The cohabitation can take place any time before the child turns 18.

The option of becoming a guardian by statutory declaration or court order remains open to unmarried fathers. There is a major information gap for many fathers who do not realise that they can become the guardian simply by signing a statutory declaration before a peace commissioner or commissioner for oaths. I accept the points that have been made both in the House and by organisations that we need to take action and we need do more to ensure this option is more widely known.

The provisions in the Bill will enable a much wider group of unmarried fathers to be guardians of their children automatically. However, I am conscious of the issues that have been raised about non-marital fathers who are not in a position to live with the mother and child. Deputies have given a variety of examples related to housing and working abroad.

Some Deputies also suggested that the time is right to give automatic guardianship to all parents. Guardianship is obviously a very serious responsibility which gives a person extensive rights and responsibilities regarding a child. As I have said, my policy approach for the Bill has been to base its provisions on the best interests of the child.

Over the years many Deputies and organisations have highlighted concerns about the possibility that a father who is not prepared to be involved in a child's life still has a veto on key decisions. People have raised concerns about whether the mother in such a situation would have to go to court to dispense with a father's consent where there are very difficult issues of domestic violence, pregnancy as a result of rape or other situations. It could be very difficult for a family where those issues are prevalent. Of course, I recognise that these issues can arise in a marital family; I do not suggest that they are unique to cohabiting couples.

The majority of court applications for guardianship are granted. This confirms that, even where a mother does not agree to guardianship, it is relatively straightforward for a non-marital father to secure guardianship of his child. However, the court rejects some applications because they are not in a child's best interests. While the vast majority are granted, a significant percentage are refused because the court, having heard all the facts, does not believe it would be in the child's best interests for that parent to be a guardian.

There is no clear consensus on the approach. Many argued that guardianship should be automatic for unmarried fathers. However, many Deputies suggested there should be exceptions. I have referred to issues of domestic violence, rape and absent fathers. I am open to other suggestions as to how we can make guardianship automatic for those fathers who are involved with their families and are committed fathers, as the vast majority of fathers would be. I will consider this further on Committee Stage. However, excluding on the basis of exceptional circumstances could be extremely difficult to define legally. I have read the case made by Treoir and others, supported by many Deputies. I will examine it further on Committee Stage.

I will further examine the question of having a guardianship register. We should certainly be moving towards having a database of guardianship. There are complexities in this regard, but now that we have the Civil Registration Act provisions with regard to the father being named on the birth certificate, it may be possible to move in this direction more quickly than had been anticipated. The regulations are being developed in that regard. I will co-ordinate with the Department of Social Protection, which has already indicated that it would be open to making more information available at the point at which the birth registration is taking place.

Some Deputies asked whether a parent with addiction issues, for example, could continue to be a guardian if a grandparent also had guardianship. The provisions enabling a relative to become a guardian will not displace the rights of parents to continue to exercise guardianship.

The question of adoption assessment remains precisely as it is. Adoption assessment needs to take into account a range of factors, particularly what is in the best interests of the child. The entire assessment is based on the consideration of what is best for the child. Adoption is a child welfare mechanism and the child is at the centre. It would not be acceptable to me to define in this legislation a hierarchy of family types which would discriminate against particular types of family. The key requirement is to address the needs of the child in all situations. We began the process of dismantling discrimination against particular family types when we abolished the concept of illegitimacy in 1987. I will not turn back the clock in this legislation.

A number of Deputies raised the question of surrogacy. The decision to exclude surrogacy from the Bill was taken in consultation with the Department of Health. Assisted reproduction is in the policy remit of the Department of Health, which is separately working on comprehensive regulation of AHR, which we need. The commission reported in 2005 and no other government has taken any action on the issue. This legislation deals with certain parentage issues.

Surrogacy is a complex ethical issue. The rights of the birth mother and the surrogate are significantly more engaged than those of a donor in donor-assisted reproduction. Issues around international commercial surrogacy are particularly difficult. We have not had the kind of consultation with the public on assisted human reproduction in this country that the Minister for Health now envisages will happen following the Government agreeing to legislation and permission to draft the heads of that legislation. There will be now an opportunity to have consultation. We need careful consideration regarding how to devise an effective ban on commercial surrogacy, which is the intention. Let me make the point that it is not yet in legislation and not yet a Government decision in terms of legislation that is in the heads of a Bill. It is the intention of the Minister but there is no decision relating to it. These are the reasons it is better for surrogacy to be dealt with in the broader scope of the assisted human reproduction legislation which has been initiated by the Department of Health. I understand there are individual cases where the parentage issues are not dealt with in legislation at present but it is extremely important that we deal with the many broader policy issues surrounding this. There are additional issues relating to the identity of a child born through surrogacy. For example, to what extent should the details of each person involved, potentially the gamete donor and the gestational mother, be recorded? This is a simple example of the kind of issue that needs further consideration. At the time the heads of Bill were being republished in September 2014, the judgment was still awaited in the Supreme Court. I acknowledge that we now have the judgment but I make the point that this case has major implications for the law relating to surrogacy and further work will be necessary to fully implement it.

I wish to clarify that it will not be necessary for a person to go through a court procedure to be recognised as the second parent of a child. A lesbian couple, for example, will be able to register their child's birth directly once both parents have completed a statutory declaration. They will also need to supply evidence from the donor-assisted human reproduction facility confirming that the assisted human reproduction took place at the facility and that the consents, including that of the donor, are in order. These areas are the responsibility of the Department of Health but clearly, once the broader work is done on assisted human reproduction, there needs to be an independent authority, as recommended by the commission, which examined this area.

I have listened to some concerns that have been expressed by Deputies about the need for transitional arrangements on the donor-assisted human reproduction provisions and I will respond to these concerns. These provisions do not have to commence on enactment and I am open to delaying them to allow couples to continue the treatment they are undertaking to enable clinics to make the necessary preparations to comply with the Act. It will also allow for the orderly preparation of regulations to underpin these provisions.

A question arose about the commodification of children. I reject that entirely. What is effectively being done in this Bill is that we are moving from a situation where there was no regulation to one where we are protecting the rights and best interests of the child when it comes to assisted human reproduction and parentage.

It was decided to amend rather than to repeal the Guardianship of Infants Act 1964. Deputies will appreciate that there are risks associated with repealing a long-standing and complex piece of legislation like the 1964 Act, the main risk being that something that is not intended to be lost might in fact be lost in the repeal.

This Bill is part of a wider suite of reforms being advanced by the Government. My Department is currently at an advanced stage in preparing heads of legislation to provide for a specific family court. Many Deputies raised concerns about the way family law cases are dealt with in the District Court and I will bring proposals to Government on this in the immediate future. I intend that the heads of this Bill will be published for consultation before the summer and that the necessary legislation can then be brought forward later in 2015. The establishment of a family courts infrastructure will equip the courts with the specialist skills needed to address sensitive and difficult issues in the best way. I note the issues raised by Deputies with regard to the need for resourcing of the courts system, supports for families going through that system and family contact centres. We have had two pilot projects relating to that and I believe they can help families, particularly where there is a high level of conflict relating to children, custody and access. With an improving economic situation, I hope that we will be able to make further investment in these areas. Certainly, the improvements in the economy make it feasible for us to think again about investment in these important areas. Points were also made about the availability of free legal aid.

The Bill makes provision for a child's voice to be heard in proceedings on parentage, guardianship, custody and access. The child's voice can be heard directly by the judge, as appropriate. I have also provided for an expert who will have the role of explicitly finding out the child's views and of reporting them to the court where that is considered necessary. The most detailed guidelines that have been ever in a Bill regarding the definition of the best interests of a child will help the court greatly in making sure that the views of the child and all of the factors that should be taken into consideration are considered during the course of the case. I will draft regulations that will set the fees that will apply as I wish this option to be affordable for families.

Deputies also raised the issue of mediation. The mediation Bill is at an advanced stage of drafting and I hope that the Bill can be published and brought before the House in the coming months. I have a particular interest in this area having done some training as a mediator. I see the value of using mediation and think it is a far better alternative for many families if it can be made available. The Family Mediation Service plays a very extensive role which I want to see developed and the mediation Bill will ensure this happens.

On the issue of maintenance recovery, which was also raised, I will bring proposals before this House this year relating to maintenance recovery in the forthcoming international recovery of child support (Hague Convention) Bill, the heads of which are being finalised in my Department. On the issue of lump sum payments and provision for accommodation to be made for a child, section 49 of this Bill clarifies that a maintenance payment can be awarded against a parent regardless of whether that parent is a guardian. Sections 85 and 86 provide for lump sum payments. Section 86 enables the court when making a lump sum order to specify how the payment is to be applied. This can include providing suitable accommodation for the child so that is dealt with in the legislation. We have had some detailed discussions with the Department of Finance and the Revenue Commissioners relating to some of the technical adjustments that will be needed once this legislation is enacted, in much the same way as when we had those discussions when the Civil Partnership Bill was passed.

I look forward to engaging with Deputies on the detail of the Bill on Committee Stage and I thank the House for responding so positively to this legislation. The recognition on all sides of the House of the need to move forward with this legislation has been a striking feature of the debate and the contribution of Members. Many Deputies recognised the opportunity that has been there to engage in pre-legislative scrutiny of the Bill. I welcome the support expressed for this Bill and hope we can work together constructively to bring the Bill through the enactment process.

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