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

In the Minister's contribution to this group of amendments she said that this is a first step. I accept that it is a first step and that the Minister has listened to some of the comments on Second Stage and Committee Stage. It is not good enough, however, that the Minister does not go further in this regard. This legislation is extensive and complex. It goes to incredible lengths to provide for protection for people who find themselves in situations where, for all kinds of different reasons, they are parents of children. The Bill goes out of its way to confer rights on people in all kinds of situations where the State deems a person to be the parent of a child. To some extent, the Bill could be criticised for bringing about a situation where parents will now be whoever the State decides they are. It raises all kinds of other issues which, unfortunately, we have not had time to delve into or discuss.

One glaring omission of this Bill relates to where there is no question about the genetic parentage of a child in respect of the father and where both parents are agreed on the matter. It is undoubtedly the case that good public policy would provide for automatic guardianship in those situations. In fact, one would have to ask why it is that the State would not provide for automatic guardianship in those situations. Whatever about historical situations, I cannot understand how such a provision in legislation in 2015 would not be open to contest in the courts because of refusing or failing to provide for automatic guardianship in these circumstances. I do not understand why the Minister is not prepared to address that.

I believe the Minister has been quite disingenuous, as have others as well, in raising the issue of domestic violence as some kind of defence for not providing for automatic guardianship for unmarried fathers. Regrettably, domestic violence is all too common in this country, but it is certainly not the preserve of unmarried fathers. It is wrong for the issue to be raised in that context. Clearly, there are several situations or circumstances in which a father or mother may not be the best person to have guardianship of a particular child. However, those decisions should be taken elsewhere case by case basis and not on the basis of someone's marital status. Again, I am unsure how this could possibly stand up to any kind of legal challenge.

On what basis is the Minister suggesting that simply because a father of a child is married he has automatic rights, whereas the father of a child who is not married does not enjoy those rights? It seems to be fundamental that someone in that situation, a person who is the father or the mother of a child, should have automatic guardianship rights, unless it is one of those rare circumstances where that is not in the child's best interests.

Underpinning all of this must be those fundamental rights, as set out in the United Nations Convention on the Rights of the Child, which provides for every child to know and be cared for, as far as practicable, by both parents. If we subscribe to the UN Convention, as I assume the Minister does, then what on earth can the rationale be for denying automatic guardianship to unmarried fathers? I simply do not understand it.

It is not sufficient for the Minister to say to us in 2015 that we have taken the first step and that we will see about the other steps later. That is simply not acceptable. The Minister is providing for all kinds of other situations, including setting down the legal parameters of parentage in many different unusual and new circumstances, whereas she fails to address this issue. It has been with us for a long time and the Minister knows it has been an issue for a long time. Despite this, the Minister is not taking the opportunity of this legislation to deal with that.

This is not only about the right of the child; it is about the rights and responsibilities of fathers. We see too often unmarried fathers being blacklisted or dismissed as not important in their children's lives. Negative messages come out at an official level about unmarried fathers, and that needs to be changed urgently. It is the case that where we expect a lot from someone, they tend to give a lot, but if we expect little from people, they will give little. There is an official attitude to unmarried fathers to the effect that they are not important, that they should not be around, that they are not necessary and so on. That type of negative attitude is very much reinforced through our social welfare and tax legislation as well as social policy in other areas. There are fundamental issues around the rights of the child but also around the rights of fathers which are not being catered for in this legislation. That is a serious omission.

I call on the Minister to explain the basis on which she is discriminating between fathers who are married and fathers who happen to be unmarried. In effect, that is what the Minister is doing. I call on the Minister to provide justification for that, because I do not believe there is any justification, and, if not, I urge the Minister to address this matter comprehensively in the legislation. The Minister knows it will be a considerable time before the Government revisits this area of family law. The Minister should not leave a glaring omission.

Other aspects of what the Minister proposes require more exploration, for example, the question of establishing guardianship. I am unsure why the Minister has amended the Bill to make it operative from the date of the passage of this legislation. If it is good practice that certain rules should relate to guardianship, then I do not see why children who were born last month or last year cannot enjoy whatever limited benefits have been conveyed by this Bill.

I also ask the Minister to explain why she came up with this figure of 12 months. On what basis does 12 months convey rights of paternity? I would also ask her to explain how it will be possible to establish that there has been cohabitation for 12 months. She referred to amendment No. 83, but that does not go anywhere near far enough, in my view, and while it is a start, it is not adequate. Why does the Minister not provide for the registrar to be required to inform fathers about their rights in regard to making a declaration? It would have been very easy to state that the registrar "shall" inform fathers of their entitlement to make a statutory declaration. I cannot understand why the Minister has not done that.

The Bill states that the registrar may take and receive a statutory declaration. How does a registrar receive a statutory declaration? Is the Minister suggesting that the registrar will be given a statutory declaration? What does the registrar then do with it? Does he or she lodge it somewhere? Is any record of that kept anywhere? It would seem from the Minister's earlier comments that she does not intend to do that.

The Minister in this legislation goes to considerable lengths to provide for the additional information that will be added to a birth certificate where a person was born as a result of assisted human reproduction, and to outline how all of that is going to be worked out. If there are registers for that kind of information, why on earth would we not provide for a register for statutory declarations in regard to guardianship? That just seems to be standard good practice. The Minister mentioned something about the difficulties involved. I cannot understand how there could be difficulties. It is a straightforward thing. A legal document is declared, yet no record of it is kept. Will the Minister explain to us why she is not providing for a record? It is very disappointing that the Minister has not paid heed to the representations that have been made to her in this regard. I believe she is leaving the State open to a legal challenge by not doing that, but, more importantly, she is leaving children of unmarried parents in that legal limbo where a child's right to know and be cared for by both parents is not actually being upheld by the State. Equally, she is providing for a situation in which fathers, in cases in which paternity is not in dispute and the man is the undisputed genetic father of a child, are being denied the rights and responsibilities of good fathers simply on the basis that they have not cohabited with their partners. I cannot see any logic in that provision and I cannot see how it could possibly stand up to any kind of challenge.

I would be very interested in hearing the Minister's explanation on all of those questions. Hopefully, we can get some kind of commitment that she might address this lacuna in the law when the Bill gets to the Seanad.

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