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

I move amendment No. 46:

In page 37, between lines 8 and 9, to insert the following:“(b) in subsection (4)—

(i) in paragraph (c), by the deletion of “child,” and substitution of “child, and”,

and

(ii) by the deletion of paragraph (d),”.

Amendments Nos. 46 to 48, 51, 52 and 54 to 59, inclusive, and 83 are linked. These are intended to address some of the concerns raised on Second Stage and further discussed on Committee Stage on the position of non-marital fathers. There was some disagreement but many Deputies supported automatic guardianship. Others spoke about supporting automatic guardianship but felt there should be exceptions but there was no agreement on what those exceptions should be, although Deputies raised the issues of domestic violence and rape, where fathers were not involved and the situation that would arise and the difficulties that would face the mother in those circumstances. My aim, pending further policy analysis on automatic guardianship, is to provide better information to parents from the outset. I take the point that was made on several occasions that many, particularly young, fathers are not aware that they can make a statutory declaration of fatherhood now and do not use that mechanism. This set of amendments is designed to ensure that parents are aware of the option of statutory declarations and can easily avail of them.

Amendment No. 46 will delete certain elements required to make a statutory declaration making a non-marital father a guardian of his child. Section 2(4)(d) of the 1964 Act provided that the parents of the child concerned must have made arrangements in relation to custody of, and access to, the child. In general, parents will not make a statutory declaration unless they are on good terms, and possibly cohabiting in any case. In such cases, the requirement for “arrangements” to be made is not a useful or meaningful one. Although the custody and access arrangements referred to do not need to be through formal written arrangements, removing the requirement to have such arrangements may be useful in removing a perceived barrier to making a statutory declaration when registering the child's birth. Amendments Nos. 57 to 59, inclusive, make the same change in relation to a statutory declaration to be made by cohabiting parents who have a child through donor-assisted human reproduction, and the same considerations apply.

These changes are a useful support to amendment No. 83. Deputy Collins tabled an amendment on this issue. My amendment is intended to provide better information to non-marital parents and to make it easier for fathers to become guardians of their children, where they are not cohabiting in a family unit. The existing mechanism of making a statutory declaration is a simple and inexpensive one but there is insufficient awareness of its existence and many parents simply do not use it. With approximately one third of births being outside marriage, it is important to ensure parents are aware of their rights and responsibilities and of how to secure them. This amendment to the Civil Registration Act 2004 is to achieve that aim. Where the parents or either of them register the birth of their child, the registrar will give them a copy of the statutory declaration in order that they can consider whether to make a statutory declaration appointing the father or second parent as a guardian of the child, witnessed by the registrar. They do not need to decide then and there. They can jointly make the declaration, witnessed by the registrar, within two weeks of registering or re-registering the child’s birth - my understanding is that at present the birth has to be registered within three months - that is, 14 days after that three months. The couple decides when to register the birth and has 14 days after that, with the registrar to make the statutory declaration. The couple does not have to make the declaration to the registrar and some couples may not. The father may not undertake a statutory declaration for quite a long time after that and it is still completely open to the couple to make the statutory declaration in the usual format before a peace commissioner or commissioner of oaths. The registrar will not charge any fee for witnessing the statutory declaration and we intend to ensure information is provided wherever births are registered about the statutory declaration. Several Deputies said there was no information about the statutory declaration, whether in maternity hospitals or when the couple went to register the birth. This makes it easier. If the parents decide not to make the statutory declaration at that time, there is nothing to prevent their doing so at a later point.

This approach will ensure that from the commencement of these provisions, which will be without undue delay, non-marital parents will have the necessary information to decide jointly whether the father will be a guardian of the child. Coupled with ensuring they have the necessary information, they will also be able to make the statutory declaration for free having had sufficient time to consider the decision. Where a child’s parents have been cohabiting for 12 months and have not taken steps to appoint the father as a guardian, other provisions of the Bill will ensure he becomes a guardian automatically. It is in the Bill that there is automatic guardianship once the couple have been cohabiting for 12 months. That provision remains, and in the case of those couples, the father is automatically the guardian, including three months after the birth of the child.

Amendment No. 48 is to clarify for avoidance of any doubt that the period of cohabitation for the automatic acquisition of guardianship commences from the date on which the legislation comes into effect. In general, legislation is not retrospective, and in view of the rights and responsibilities which accrue on guardianship, there must be clarity as to whether there is any intention of creating retrospective rights. Fathers who live with their partners and children and who are not guardians can, if they wish, secure those rights and responsibilities sooner, whether by means of making a statutory declaration or the option of applying to the court, which is still available to parents in that situation.

Amendment No. 56 makes the same clarification in respect of the automatic acquisition of guardianship by the cohabiting parent of a child born through donor-assisted human reproduction. I have listened to the debate and moved to deal with certain issues. This makes it far more likely that at the time of a birth, the natural father will assert his rights through the statutory declaration where a couple agrees with this and can do it when registering the birth.

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