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

Between 5% and 10%. That is where the mother disagrees, but the majority of applications are granted. That is an estimate. It is hard to get that figure. For decades courts have made decisions on guardianship, and it is up to the person, just as in the case of a will, to take possession of what we might call the guardianship certificate. Solicitors may have a copy but there is no repository as such.

We are being asked to begin to keep an automatic record, a register of guardianship. In principle that is the right thing to do, but it is quite complex. The records have to be gathered from every court in the land. The Courts Service has to work out how that will be done. A process has to be put in place. There has to be a decision on the shape of such a register, where it will be held, the combination of national and local records and the information technology systems that record or do not record them. This is a large piece of work.

Treoir makes the point that we keep records of many things in this country but there are many contracts that we do not keep records of. This is a very important aspect of a child's and a family’s life. I am suggesting in amendment No. 60 that I would begin the process of moving towards that by having two pilot projects to work with organisations, such as Treoir and Women’s Aid, which have a point of view on this to see how we can put together a policy approach and a recommendation on how to move forward.

I assure Deputy Shortall that the role of the registrar is being developed and there will be administrative arrangements and probably regulations from the Department of Social Protection about developing this. That would be in line with the way information is provided on a variety of rights. That is a major move under this legislation.

Several Deputies spoke about the broader context in respect of how a court deals with these issues. We need family courts to take these decisions. I will bring forward legislation to establish family courts. We received advice that establishing family courts would require a constitutional amendment. I have now decided to move ahead with establishing a family court in each division of the courts, where there would be judges who specialised in this area and more time to hold complex family law cases. There is also a need to develop mediation services further. We do not have enough. There will be a mediation Bill. Both of these will substantially help the situation.

Several points were made about cohabitation for 12 months, including for three months after the birth of the child. We discussed this on Committee Stage and I changed the provision based on the committee’s recommendations.

The approach in the Bill is to require a committed relationship, with a couple living together for three months after the birth of the child. That is a move towards automatic guardianship for couples in those situations. Many will be in such a situation and will be able to avail of automatic guardianship as a result.

Deputy Tuffy asked about retrospection. Where a couple has lived together for a number of years, the father is immediately entitled to seek a statutory declaration. If the couple lives together and there is no objection, as would be the case in the circumstances to which the Deputy referred, the father gets full guardianship rights. As a result of this Bill, the father in such a position will have automatic rights within a year.

Some Deputies asked about automatic rights for all fathers and referred to the different treatment of non-marital fathers in this country. Some of that arises from the constitutional position but there are issues to be worked on around automatic guardianship. Those issues include cases where there is no real involvement in the child's life, where the father is not around or where the father fails to exercise his guardianship responsibilities, as Deputy Boyd Barrett mentioned. In such circumstances there are real consequences for the mother and the child. For example, the mother would have to apply to the court to dispense with the consent of the father for the issue of a passport. While it is a rare case, it would also apply where a lone parent decided to place a child for adoption.

We have spoken about domestic violence and abuse and I agree that we should not make a decision as to the rights of a non-marital father on the basis of the poor behaviour of some other people. There is further policy work to be done to enable us to deal with the exceptions in legislation. I have given a commitment to a review of the legislation in two years and, in the meantime, work will go ahead on the various policy issues on which Deputies have commented.

A number of Deputies said that other countries have moved to automatic guardianship. That is true but there exists a variety of meanings for the word "automatic" in this context and it does not always mean one can go from one situation to another. A range of considerations has been taken into account in the legislation in those countries and we would need to do likewise. I will do further work on this issue but I believe the provisions in the Bill will substantially change the number of fathers who will automatically be guardians. They will now know that they can become guardians by signing a statutory declaration and the situation regarding the rights of natural fathers will be much improved.

One Deputy stated that parents will now be whoever the State says they will be. I reject that comment. Parents continue to be the biological parents except in the very limited and highly specific circumstances of donor-assisted reproduction, which is subject to massive safeguards in the child's best interest. The golden thread running through this legislation is the child's best interest. We have to begin to legislate for AHR and DAR, and the way we have approached these issues in the legislation is extremely respectful towards biological parents. It takes full cognisance of their rights and makes every effort to ensure that the right of the child to genetic information is fully respected. Some 300,000 people in this country are affected by infertility issues and it was important to deal with parentage issues arising in cases of AHR or DAR. I reject the characterisation of the Bill as one in which parents are to be whoever the State says they are. We are building in extra protections for children and families in order that we can have more stable family units where the parents who actually rear the children will have guardianship rights and this will be in the interests of the child.

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