Dáil debates

Tuesday, 7 June 2011

8:00 pm

Photo of Brian WalshBrian Walsh (Galway West, Fine Gael)
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I thank the Ceann Comhairle's office for allowing me to raise this matter, which is of some importance. I acknowledge the presence of the Minister, Deputy Shatter, and thank him for coming to the House to speak about the legal status afforded to unmarried fathers in Irish law and the right of such people to the guardianship of their children. Married parents are correctly considered joint guardians at present. They share equal rights in respect of their sons and daughters. In the case of a child born outside of marriage to unmarried parents, however, only the mother has an automatic right of guardianship. In such circumstances, the law considers the father to be a stranger to the child, in effect. It seems that under Irish law, a father's right of guardianship derives from his being the husband of the mother of the child, rather than his being the father of the child.

The human impact of this situation on the growing number of non-marital families in Ireland cannot be under-estimated. Children are being deprived of their right to know and be cared for by both parents. Fathers are distraught at being denied the joy of playing an active part in the upbringing of their children. This is having a devastating effect on people's lives. I know of genuine and decent fathers who are suffering from severe bouts of depression as a result of this law. I suggest it is contributing to the growing incidence of suicide in society, which was the subject of extensive statements in this House in recent weeks. Like other Deputies, I have been contacted by grandparents who are concerned about their son's well-being and mental health. Equally, I have been contacted by people who are devastated because they have little or no access to their grandchildren. This divisive and saddening injustice is the result of a failure to legislate for the changing nature of the Irish family.

We live in a time of great social change. An increasing number of couples are living together in non-marital relationships. We now have divorce and civil partnerships. In 1996, the Constitutional Review Group noted that the Constitution - our founding document - was "clearly drafted with one family in mind, namely, the family based on marriage". The European Court of Human Rights has constantly reinforced the fact that families not based on marriage are families nonetheless. Children born in such circumstances should have the right to benefit from the support and affection of both parents, notwithstanding their marital status. As the Constitution was drafted in a different time, it reflects a different reality and social outlook. Just 3% of children were born outside of marriage in 1937, whereas today one in every three births is to unmarried parents.

The unmarried father is not part of the family within its meaning under Article 41 of the Constitution. He is not a parent within the meaning of Article 42. He has no personal right in relation to his child under Article 40.3 of the Constitution. Under our current laws, the unmarried father is a legal pariah, in effect. He is ostracised and ignored, voiceless and invisible. This stems from our Constitution, which professes to cherish the notions of family and equality but in many cases is destroying the very thing it purports to protect, apparently with the paramount welfare of the child at heart. We are all aware of tragic circumstances that have conspired to deprive a child of its father or deny a father the unique joy of watching his children grow up. We can do little to prevent such tragic instances, sadly, but we can do something to ensure fathers and children do not suffer in each other's absence as the result of an antiquated Constitution and inadequate legislation.

The right of every child to know and be cared for by both of his or her parents, regardless of whether they are living together, should be enshrined in the Constitution. An explicit provision should be inserted in the Constitution to guarantee equal rights to both the mother and the father, in accordance with Article 7 of the UN Convention on the Rights of the Child. That would serve the best interests of the child. The extensive research that has been carried out in this area was reflected in the Law Reform Commission report on the legal aspects of family relationships, which was published last December. With this in mind, I ask the Minister if he intends to address the issues I have raised. Will it be done as part of the Government's legislative programme? I bow to the Minister's superior knowledge and wisdom on this subject. I respectfully suggest he take on board many of the recommendations in the Law Reform Commission report.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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I thank my colleague, Deputy Walsh, for raising this important issue. As he will be aware, the key legislation relating to parental responsibility is the Guardianship of Infants Act 1964, which was amended extensively in 1987 and 1997 to strengthen the position of non-marital fathers with regard to their children. Some of the legislative changes that have been made in this area were required by the European Court of Human Rights. It is worth recalling the details of the substance of those provisions, as they relate to unmarried fathers. I will refer to how those provisions have operated in our courts and mention the actual rights that are conferred on unmarried fathers in our legal system.

In the absence of agreement between the unmarried father and mother of a child, the father may apply to the court to be appointed a guardian of his child under section 6A of the 1964 Act, as amended by the Status of Children Act 1987. The law is protective of the rights of the child to the society of both his or her father and mother. Section 11D of the 1964 Act, which was inserted by the Children Act 1997, obliges the court in proceedings relating to the welfare of a child to consider whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis. In this context, it is worth noting that the majority of guardianship applications are granted. In 2009, the most recent year for which final figures are available, over 95% of applicant fathers were awarded guardianship, excluding cases which were withdrawn or struck out. My personal experience prior to becoming Minister, as a lawyer dealing professionally with family law matters, was that one of the big difficulties in this area is that many fathers do not take responsibility for their children. Indeed, many of them do not seek to form and cement relationships with their children, or to involve themselves in their children's lives.

If there is agreement between the parents, the law ensures there is no need for them to go to court to have a guardianship order made. Instead, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act 1964, as inserted by section 4 of the Children Act 1997, appointing the father as a guardian of his child. Section 11 of the 1964 Act provides that the guardian of a child or the unmarried father of a child, irrespective of whether he is a guardian, can apply to the courts for either a custody order or an access order. Any court order that is made must be determined with regard to the welfare of the child as the first and paramount consideration. It is important to recall that in all proceedings under the 1964 Act, as amended, where appropriate and practicable the court must take into account the child's wishes in the matter, having regard to the age and understanding of the child. In practical terms, the older the child, the greater the importance the court attaches to the wishes expressed by the child.

While unmarried fathers do not enjoy the same automatic guardianship rights and responsibilities as married fathers, the mechanisms I have outlined make extensive provision to allow them to obtain that legal status in relation to their children. Based on the statistics I have mentioned, the courts operate the law to the fullest possible extent. The truth is that there is no major obstacle to the biological father of a child being named as guardian of the child in circumstances in which the father has an established relationship with that child. As the Deputy mentioned, a number of recommendations for reform have been made. I have raised this issue while wearing a different hat. As recently as December 2010, the Law Reform Commission published a report on legal aspects of family relationships in which it recommended that joint registration of a child's birth be made compulsory for unmarried parents; and that on registration a father should automatically become a guardian of the child together with the child's mother.

The report also recommends providing a statutory basis for other members of the child's family, including step-parents and other relatives, to establish a legal relationship with the child. These are far-reaching and important proposals to which I am giving careful consideration, and are relevant to both legal and constitutional policy. I believe consultation is required with relevant interests before we progress legislation in this area. It is important for all parties concerned that a necessary balance be maintained in the law in a way which recognises the rights of the parties but which fundamentally protects the welfare of children.

The programme for Government contains a commitment to reform and modernise aspects of family law. In this context, I want to assure my colleague the recommendations in the Law Reform Commission's report are under consideration by me and my Department, as are other crucial reforms in the area of family law. Ultimately, it is my hope to publish a family law Bill. In addressing some of the areas of family law, I expect not to be in a position to publish that Bill until next year.

In dealing with issues of this nature it is important not to deal with them too simplistically, and I am not remotely suggesting that Deputy Walsh would do so. However, there are other areas relating to both parenthood and paternity and guardianship rights which have for too long been ignored in this State and which are of considerable importance, such as the parentage and, indeed, paternity of children born as a result of the new scientific methods of reproduction and the assistance that parents may obtain from those who donate materials which can result ultimately in a child being born. These are issues which have for too long been ignored and in respect of which legislation is required. They affect not merely parents outside marriage but marital parents, and these are issues that I hope to be in a position to address by way of legislation next year.