Dáil debates

Thursday, 9 October 2014

Civil Registration (Amendment) Bill 2014 [Seanad]: Second Stage (Resumed)


Question again proposed: "That the Bill be now read a Second Time."

10:45 am

Photo of Seán KyneSeán Kyne (Galway West, Fine Gael)
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I will take up where I was previously regarding the issue of deaths of Irish people abroad. I covered some of the other areas.

The Bill I produced in 2012 covered some of the shortcomings experienced by a number of Irish families who had loved ones die abroad. Currently, the law does not permit the registration of such deaths abroad. I am glad to note this is being taken care of and that the obstacles which impeded the introduction of these important measures have been overcome, enabling the Ministers to proceed. It has been quite a while coming and I am delighted to see progress. As I alluded to, there was a "Help bring them home" campaign from Galway which was led by my colleague, Councillor Padraig Conneely, who led a delegation before the Joint Committee on Social Protection on this issue.

It is important the legal obstacles which impeded the introduction of these important measures have been overcome enabling the Ministers to proceed with this comprehensive Bill. Section 13 amends Part 5 of the Civil Registration Act 2004 and creates a new register of Irish deaths abroad through section 44B. Section 44C sets out the information an tArd-Chláraitheoir will require to register the death, while section 44D empowers an tArd-Chláraitheoir or an agent acting on behalf of his or her office to provide families, and even parents, siblings and partners, with the certificate reflecting the entry of the death on the Irish record of deaths abroad. Crucially, the Bill is retrospective in this regard. Families of Irish persons who have died abroad in the recent or distant past will be able to apply to have the death recorded on the new register of Irish deaths abroad and obtain an equivalent to an Irish death certificate.

I thank the Minister and the Department officials for their work on this area. It is an emotive issue for families who have suffered a bereavement abroad. Many parents and siblings of family members who have died abroad have been in contact with me stating that, for closure for them and their families, they want an Irish death certificate.

I am pleased the process is going through the Dáil and they will soon be able to receive the death certificate.

10:55 am

Photo of Jim DalyJim Daly (Cork South West, Fine Gael)
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Fáiltím roimh an deis labhairt ar an ábhar seo. I welcome the opportunity to speak on the Bill. As the previous speaker said, the Bill is one we have been anxious to see come to the House for some time. I have raised the issue on numerous occasions on the Order of Business and with the line Minister, in order to expedite the arrival of the Bill in the House, which I particularly welcome.

When I look back on my three and a half years as a national parliamentarian, without doubt one of my proudest achievements in that time is the contribution I made to the children’s referendum. The reason I say that in the context of this Bill is because the children’s referendum represented a huge milestone in terms of the change for a tiny minority of the population, namely, children in State care, relative to the number of children in care. Such children are very vulnerable and it is very important to take care of them. As a representative, if one finds it within one’s gift to do something to improve the lot of a tiny percentage of people then one’s time in the House will be made all the more worthwhile.

Likewise, I welcome the opportunity to make a contribution to the Bill today and to ensure its passage through the House. In the overall scheme of things a small number will be affected by it but it is none-the-less important. I speak in particular of the element of the Bill that relates to the registration of deaths abroad. The trauma, hurt and grief remains with the family, as is evident when one meets people who have lost a son or daughter. I think in particular of Colm Johnson from Bandon in west Cork, a 24-year old young man with his life ahead of him, who was killed tragically on 6 August 2012 while on a kayaking holiday. To add to the grief and trauma I can only imagine his Dad, Moss, his Mum, Ann, and his siblings are going through, is the fact that the State refused to recognise not alone their grief and trauma but that the death had occurred. They explained the hurt it caused to them. I speak for the many parents who have lost loved ones abroad. To lose a loved one in any circumstances is extraordinarily traumatic, but to lose somebody abroad brings added trauma, hurt and difficulty. As a State, we further compound the situation by hindering the resolution of issues that must be resolved, including the paperwork that must be done due to the State failing to recognise the death. I heartily welcome this long overdue development.

Ireland has changed and it continues to change. For young people the world has become a smaller place in the past 20 years. They travel to far-flung destinations for short periods, whether on an adventure, short work placement or holiday. That is the world we live in. It is time the State recognised that fact and put an end to any further injurious hurt we might cause to families by refusing to recognise officially the death of a loved one. The measure is to be welcomed. It cannot come soon enough.

The other aspects of the Bill mirror changes in society. I welcome in particular the registration of the father’s details on birth certificates. In a typical family it is not an issue but in an atypical one it can be a big issue for a person who wants to know his or her identity. The State cannot provide such details yet a person sitting beside one on the bus has all such details to hand. That is an injustice which must be corrected. We must be able to provide people with the information they seek and to tell them who they are.

Another element of the Bill relates to marriages of convenience. It is important for the State to be able to step in where a genuine and sincere conviction is held that a marriage is being undertaken where advantage is being taken of someone for immigration-related benefits. That is also a welcome development. I welcome the Bill and I am delighted to have an opportunity to speak on it. I commend the Minister and the officials who have drafted the Bill. It is a welcome development for society as a whole, although the number who will benefit directly is limited.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I now call Deputy Michael McGrath, who has ten minutes still remaining in the slot.

Photo of Michael McNamaraMichael McNamara (Clare, Labour)
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I am due to speak.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I am sorry, it is Deputy Michael McNamara. My apologies.

Photo of Michael McNamaraMichael McNamara (Clare, Labour)
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Yes, a Chathaoirligh.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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Deputy McNamara might join Fianna Fáil.

Photo of Michael McNamaraMichael McNamara (Clare, Labour)
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Both of us might wish to join.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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It was a momentary mixing up of the jerseys.

Photo of Michael McNamaraMichael McNamara (Clare, Labour)
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I wish to address three issues in particular relating to the Bill. The first relates to the concept of a marriage of convenience, which my colleague, Deputy Jim Daly, mentioned.

A marriage of convenience means a marriage where at least one of the parties to the marriage, at the time of entry into the marriage, is a foreign national and enters into the marriage solely for the purpose of securing an immigration advantage for at least one of the parties to the marriage. I have at least one if not two friends whom I suspect have entered into marriages of convenience, at least based on the definition I outlined. In one case the bride was a foreign national who came to Ireland with her parents from North America. She lived practically all of her life in Ireland, as she came at the age of five and she lived in a small rural village, met her boyfriend in her teens and they lived together for a number of years. To all intents and purposes Ireland was her only home. However, she had not been registered properly and eventually her immigration status caught up with her. That said, there was no doubt that to all intents and purposes she was Irish and Ireland was her home. She was involved in a loving relationship. The couple lived together and they seemed to me to be quite happy, but who knows who is happy and who is not. From the outside it looked like a loving relationship. Perhaps it was but who knows. What is love? Is love a prerequisite to be in a relationship?

The easiest thing for them to do in order to solve her immigration status was to marry. They could have opted to make representations to Ministers and gone through the horrible immigration system we have in this country which seems to be never-ending. Most of the legal advice she got was that there was no doubt she would not be deported, and that Ireland is her home but she would probably spend a lot of money and that it would take about five or six years to sort out the mess. They said she could expect letters from the Garda Síochána, the Garda National Immigration Bureau and that she would have to travel to Dublin frequently. In effect, her time would be wasted and she would probably not be allowed to work even though she went to school in Ireland and lived here practically all her life. She was told that the easiest thing to do would be to get married. The couple got married and are still married, happily, I hope. It would seem that is the case. They have two children. One could ask whether that is a sign of a loving marriage; that the children are a result of love. I did not ask them. To all intents and purposes they are living a normal life. They are happy citizens with two children going to the local school – close to the requisite standard of 2.4 children.

I believe they would have the same life if her immigration status was not an issue; they would still have two children and be happily living together but they probably would not be married. The reason they married was to obtain an immigration advantage and to avoid the nonsense that is the Irish immigration system, which lasts forever and in which one gets tied up. There is a long list of judicial reviews to go through and Garda officers increasingly say what one cannot do when people go to register rather than what one can do. I appreciate the intention of the legislation is to capture people who have never met before but one could ask whether even that is unusual. One could talk about customs in certain countries and the payment of dowries. Does one then get into cultural subjectivities? Does one discriminate between cultures that have a dowry system and one that does not? It is a very difficult concept to legislate for. I wonder whether the Bill contains the right wording or if there is a better wording. Unfortunately, I am not certain there is.

It is not unusual for immigration status to be among the considerations involved in a decision as to whether people would marry.

If a couple is involved in a stable relationship, albeit involving an Irish national abroad, the other partner might want to come back to Ireland. People often marry knowing that it will enable a partner to move more easily.

There is the idea that the immigration status of a person may be taken into account, especially if a deportation order issues in respect of a married person. The insurmountable obstacles test used to be applied to cases where one spouse is Irish and has always lived here and the other is not an Irish citizen, although he or she may have lived here for most of his or her life. The latter may be a citizen of Liberia or any country outside western Europe and North America and an immigration official may suggest that there is no insurmountable obstacle to the couple living in the country of the non-Irish citizen. This suggestion will be made notwithstanding that one of them has never been in that country before and the other may not have been there since he or she was a toddler. If such people meet in a nightclub like any other couple, is it a marriage of convenience? It probably is. The couple are together not because of immigration status but because they want to live their lives together, like most couples. The reason for the marriage, however, is immigration status.

Another issue is impediments to marriage. This is an amendment to the Civil Registration Act 2004, which was the first legislation to note that being of the same sex is an impediment to marriage. The Government tells us there will be a referendum on this but I question the need for that. Can we not simply legislate for the issue? It will be a divisive and hurtful campaign for many people and it may not be necessary to engage the public in a referendum. After all, we Members of the Oireachtas are paid to be here and the Constitution says we are legislators, although Departments are the de facto legislators and we merely apply the rubber stamp. Do we need a referendum? I am led to believe a former Attorney General said a referendum is required on this in an opinion supplied to the Government. I have not seen this opinion nor has anyone else because no one sees the opinions of Attorneys General. Can an exception be made in this case? Is there a reason such opinions are not made available? Should such opinions be made available as a matter of course? If it is a matter where the State is being sued and there is a potential liability to the State, the Government will not wish to show its hand by publishing an opinion. Surely, however, opinions relating to matters of public importance that require the time and expense of a referendum could be published. Very few people want a referendum on this issue if it can be legislated for. That is certainly the case for most of the gay people who want to marry and to whom I have spoken. Why is it not possible to legislate for this?

I am aware of cases relating to this topic such as Murray v. Ireland and a high-profile one involving Senator Zappone. In Murray v. Ireland Mr. Justice Costello of the High Court and once of this House said the Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of partnership based on irrevocable personal consent. It is clear, then, that the judgments refer to the Christian notion of marriage in the Constitution and on this basis the court found it was acceptable for Ireland to refuse to recognise same-sex marriages from abroad. There is a world of difference, however, between saying it is acceptable for the Oireachtas not to recognise same-sex marriages and saying it would be unlawful for the Oireachtas to legislate to recognise same-sex marriages or allow same-sex marriage in Ireland.

It is clear the notion of marriage in the Constitution is based on a Christian notion of marriage, but that does not mean civil marriages are unlawful in Ireland. Even divorce is lawful in Ireland since the constitutional referendum on that issue. Our notions of what provisions of the Constitution mean constantly evolve. Many people accept that gay marriage is part of the right to have a family, that the security of family life should apply to heterosexual and homosexual people equally. I question the need for a referendum on this issue if it is possible to legislate for it.

Hard cases make bad law and section 46 of the 2004 Act reads "a marriage solemnised in the State, after the commencement of this section, between persons of any age shall not be valid in law unless the persons concerned" notify a registrar in writing three months prior to the date of the marriage or are granted an exemption from doing so by a court. I imagine the latter would apply if there was a rush to marry. Before this provision was enacted, any marriage carried out in a Catholic church where there were two witnesses was valid in the eyes of the State. The situation was slightly more complex for marriages carried out in other Christian churches and under other faiths, such as the Jewish faith, but they were still valid. What happens now if the people involved do not seek permission in advance and a priest proceeds to marry them anyway? It will be a valid Catholic marriage under Canon Law but it is not a marriage in the eyes of the State. Some might say this is not a problem - the couple can marry again in a civil ceremony - but what happens if such an arrangement only emerges after one of the parties has died? Some people marry for immigration status but some do so because death is impending and they wish marry before it occurs for various reasons, including legal and insurance reasons. What happens in these circumstances where there was no impediment to marriage and there was an intention to marry validly? Could such a marriage be recognised as valid in the eyes of the State after the fact?

11:05 am

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I wish to share time with Deputy Clare Daly. I am grateful for the opportunity to speak on this new legislation, the Civil Registration (Amendment) Bill 2014. This is an important debate as many complex issues are covered in the Bill. We must get this right, respect the rights of the person and ensure there is no question of exploitation. We must be vigilant when it comes to trafficking and I will deal with that issue later. Our minds must be clear and open and prejudice must be tackled in order that all Irish and European Union citizens are treated equally. There is no point talking about an inclusive society or building a new Ireland that respects all cultures and traditions if we do not have quality, well-planned legislation to defend the rights of citizens. This Bill proposes many major changes to the Civil Registration Act 2004. Many relevant issues were covered earlier by my colleagues.

The Civil Registration (Amendment) Bill 2014 will introduce a number of changes to the Civil Registration Act 2004.

The Bill specifically focuses on marriage and civil partnerships of convenience, and this must be scrutinised very carefully; compulsory registration of both parents on a birth certificate, which I welcome; the validation of embassy marriages and civil partnerships, which is an important aspect of the legislation; registration of certain Irish deaths abroad; and information sharing. These are the key elements of the legislation.

People may enter a marriage or civil partnership for a variety of reasons. Love is one reason, as we all know very well. Marriages and civil partnerships entered into for material gain or tax breaks are as equally valid in the eyes of the law as those entered into for love or a shared future. Many people do not know this.

The right to marry is recognised as a fundamental human right by Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights of the European Union. Marriage is also afforded special protection in the Constitution in Article 41.3.1° which states, "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack".

The Law Reform Commission's, LRC, recommendations were informed by two major principles, that the rights and best interest of the child be the primary consideration and that there should be equality between all parents who should be treated equally in respect of their relationship with their children regardless of gender or marital status. These recommendations are top class. The LRC cites the UN Convention on the Rights of the Child, as ratified. Article 7.1 of the Convention states, "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents". This is regularly breached in the broader debate. One often hears the phrase "non-national". Nobody on the planet is a non-national. People who come to Ireland might be foreign nationals, but we regularly hear the phrase "non-national" used in the Dáil and on media programmes. Everybody comes from somewhere, everybody has roots somewhere and everybody has a nationality. If people want to change their nationality or amend their situation, this is their constitutional right. People should remind themselves of Article 7.1 of the UN Convention on the Rights of the Child. The LRC also recommended compulsory joint registration of births and set out the necessary changes to procedures to support this move. This is an important part of the debate.

A number of my colleagues have raised the issue of civil partnerships, which were introduced in 2011 and take place between two members of the same sex. Civil partnership status is not protected in an equivalent way to marriage and we must face up to this. I was interested to hear some of the comments of my colleague, Deputy Michael McNamara, on same-sex marriage. As far as I am concerned, one either believes in equality or one does not. If people of the same sex want to get married, they should be entitled to do so. I disagree with Deputy McNamara's view that the referendum will be very divisive. If people have a problem with equality, that is their problem. Most Irish people have a very sensible, balanced and measured outlook on life. All of us have friends, family members and neighbours who are gay and it is not a major issue; they are our friends, neighbours and cousins - end of story. Do they have a right to marry? The answer is, "Absolutely, yes". If people have prejudice and attitudes, that is their problem. We are trying to build a new democratic inclusive Ireland based on equality and if people have problems with this broader debate, it is their problem. We should not back off or hide from them, or say it will upset some section of society. One either believes in equality or one does not. I do not believe it will be a very divisive campaign.

I agree with Deputy McNamara in that I would also love if we could just get on with it and legislate and stop having all of these referendums. People are elected and if the electorate does not like the decisions we make, it should boot us out at the next election. We should be able to legislate rather than having all of these referendums every second week. We should also legislate on the Y case and all of the other social issue cases. We have been elected to come in here and legislate. If Members have the bottle, they should get on with it and if they do not, they should not be involved in politics. People seem to run away from certain issues.

People also seem to want to back off from race equality issues. This touches on marriages of convenience and immigration. Racism and any type of sectarianism should be a no-no. There should be no debate about it. Racism should not be tolerated and nor should inequality. People who have problems with immigration should wake up and get real. Their own children, neighbours and cousins are running around New York or Australia as I speak. This is part of life and immigration is part of modern life. It is important to say this. Anyone who has problems with "these people" coming into our country should get a life and get real. There should be no question of tolerating any racism.

Marriages of convenience are sometimes referred to as sham marriages and generally take place so one partner can gain residency in a country. Governments should stay out of people's bedrooms and people's personal lives. People may not be married but may be in a long-term relationship and have children. It is not the business of the Department of Justice and Equality or of politicians. If people living in a country want to become a resident, they should not have to get involved in marriages or be forced down this road.

I welcome the provisions in the legislation on information. It is very important to have quality information, particularly when dealing with children and families.

11:15 am

Photo of Clare DalyClare Daly (Dublin North, United Left)
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I never thought I would say this, but I found some of the comments made by Deputy McNamara to be very interesting. I was a little afraid he was going to burst into a version of "What's Love Got To Do With It?". In fact, he raised some very interesting arguments which get to the heart of this matter. What is a marriage of convenience? What is a legal marriage? Is there such a thing as a legitimate marriage? People have many different reasons for marrying and who are we to say any of them is less valid than anybody else's? I am aware of a married couple from different countries who met over the Internet. People on the outside might look on and say it is a bit peculiar, but it seems to work for both of them and they get something out of it. I do not know what one would call it, but is it doing anybody any harm? We must be rational about this.

Clearly, there is a substantial difference between a mutual arrangement of convenience for two people who both benefit and somebody being exploited. However, there is a social argument about marriage being rooted in exploitation anyway, and the old definitions when women and children were the property of the male partner. There is no high moral ground on these issues. Dealing in trafficking and exploiting people for sexual and other purposes is completely wrong, but this does not necessarily fall under the legislation.

I thought the points made were very valid. I echo the points about same-sex marriages. There is a view that we could legislate for them. I do not believe it is controversial at all. If there is a referendum, it will be overwhelmingly carried, but do we really have to go through all that? Could we not legislate for civil partnerships for gay couples? That is something that should be looked at.

Essentially the Bill gets to the heart of people's identity, their right to an identity at birth, an acknowledgement of their existence at death and to have that properly registered. These matters are very important and I am glad to see a number of the measures included.

I want to deal with two aspects. First is the position of the compulsory registration of fathers' names. This is clearly necessary to underpin the rights of children under EU legislation in order to have access to their identity. It is a very good thing. Deputy Jim Daly made the point that this does not apply in a typical family, but that misses the point. Much of the reason for introducing this legislation now is that there is no such thing as a typical family in Ireland or elsewhere. The nuclear family of a male daddy, a female mammy and 2.3 children does not exist anymore. We have a society with 217,000 children of separated parents in the State according to the most recent census. We need to acknowledge that many of them are living in new arrangements with different half-brothers, half-sisters etc.

While I really welcome that fathers' names are being added, it does not change much for fathers. There is a gaping deficiency in fathers' rights in our system at the moment. It is a huge problem in the context of the modern family. Having a right to have one's father's name on a birth certificate does not change that or give the father any extra legal rights. This needs to be balanced. We talk about rights and responsibilities, but responsible parents - separated fathers - were substantially undermined in last year's budget by the removal of the single-parent tax credit and the changes in that being given over to the primary carer. The reality is that because the Irish courts system is based on the old traditional family model, 97% of separation cases deem the mother to be the primary carer, even in instances where there is 50:50 access.

In my area I know of one devoted father, who is separated, who had been contributing to the upbringing of his child. His ex-partner was in another arrangement with another child from a different partner. That woman wanted to share that tax allowance, recognising that she had two children from two different fathers, but it could not be done and that responsible father could not get any benefit back. We can talk about rights and responsibilities, but we need to do much more and economic policies need to back up some of the changes we are talking about recognising on paper.

The other major absence from the legislation is one that was very well articulated by Senator van Turnhout in the Seanad, which is the position of adopted people and the deficit for them in the present scenario. We know that Irish legislation prevents discrimination on many grounds. However, adopted people are not specifically excluded from discrimination. The State by its actions has actually defended practices of discriminating against adopted people. While it is good that we are dealing with this Bill to ensure that parents born today of natural parents will have full access to their identity, the legislation does nothing for adopted people, including the 52,000 adopted people many of whom are adults who still do not have a legal right to trace all the information held by the State on their identity, but also some of the children as well.

Obviously adoptions in Ireland now generally take place outside the State and involve very small numbers of people. Adoptions since the 1990s fall under the remit of the Hague convention on intercountry adoption, which in line with UN regulation guarantees the child's absolute right to identity of origin. In order for us to be compliant with the Hague convention, the UN CRC and with best practice, Ireland should make every effort to note the adopted status on a child's birth certificate. We are failing to take account of this. Obviously they should have access to their original birth certificate from their original country of origin.

All of the welfare experts agree that what happened to so many Irish people who were illegally and secretly adopted, in many cases against the wishes of their mothers, was wrong. We have had cases where birth mothers' names were not put on their birth certificates and instead the names of their adoptive parents were put down as their birth parents. We have had many instances of people only learning they were adopted when their adoptive parents died. It causes tragedy and heartache for people when their whole understanding of the person they thought they were is stood on its head. It is a crime to do that to somebody. All the welfare training shows that it is best to acknowledge children's identity straight up and deal with that as normal because there is no such thing as normal really.

Because many Irish adoptions are foreign-based adoptions, it is quite obvious that the parent is not the natural parent and that assists in dealing with these things. Why can we not have the adoptive status on the birth certificate? That would be a very good way forward. Many Irish people were denied access to their original Irish birth certificate. It is terrible that that still continues despite our ratification of the Hague convention. In Britain and other countries, people have had a right to their original birth certificate since the mid-1970s and the roof has not caved in; life has gone on and it has been fine.

The Minister for Justice and Equality when in opposition made great pronouncements about the need to protect information and the need for children to have the right to their identity. However, when she became Minister for Children and Youth Affairs many of the statements she made in opposition were stood on their head and the excuses were given as to why people could not have access to this information. It is not good enough. We are in the final months of the Government's lifetime. In the early years of it we were promised adoption information and tracing legislation. We still have not even seen the heads of a Bill despite numerous promises I have got on it. Our delay in this is based on a misinterpretation of the I. O'T v. B case and the false emphasis being placed on the privacy of the mother. We know of the stories that have come out. In many instances these women were unwilling to give up their children. In many instances they did not know and did not sign anything. They do not want their privacy protected and really what we are talking about protecting is State-enforced secrecy rather than privacy.

If we want to go forward in a proper way and deal fully with everybody's right to identity, that means everybody and it means adopted people as well - people being adopted now, but particularly the 50,000 or so adopted people who have been so sorely mistreated, many of whom came through the Magdalen laundries and so on. While we are discussing this, we also need to overhaul that closed-adoption system in order to have a level playing field and ensure that all children of the nation are cherished and recognised equally.

11:25 am

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I call Deputy Mitchell, who is sharing time with Deputy Lawlor.

Photo of Olivia MitchellOlivia Mitchell (Dublin South, Fine Gael)
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I welcome the opportunity to speak on this important legislation that deals with recording the defining moments of our lives, our births, marriages and deaths - the records that establish our position and status within the State, and our relationship to one and another and to the State as citizens.

I am particularly interested in the provision requiring the registration of father's names on children's birth certificates. In introducing the 2012 Bill in this area, the Tánaiste and Minister for Social Protection, Deputy Burton, mentioned she intended to introduce this amending legislation. I am delighted to see that promise being fulfilled now. In truth it should probably have happened years ago and we should not have had to wait for EU direction to do it. I believe every child has the right to know his or her parentage. It is unacceptable that even as recently as last year, 2,675 children were born and registered without a father's name on their birth certificate.

I presume the number is roughly the same every year. Apart from the rights of the child, if the father remains living in the same area over a number of years and has more children, whether marital or non-marital, it is not at all beyond the bounds of possibility - in fact, it is probably quite likely - that two of those children might meet without being aware of their shared parentage, which raises the possibility of relationships outside the permitted degree and certainly outside what would be wise. As a small island country we should be expanding our gene pool, not reducing it.

I fully appreciate the reasons mothers have had in the past and still have today for leaving the father's name off the register. These are complex issues and it is sometimes difficult to know what a person's motivation might be. In some cases, it may genuinely be that the father is unknown. In other cases, there may be a desire to have nothing further to do with the father or a belief that including his name on the certificate could in some way imperil the mother's entitlement to housing benefits or lone-parent payments. Some mothers may fear that including the father's name could result in their being forced to live together. In other instances, it might simply be that the mother does not want the child to know who his or her father is; there are all sorts of reasons that such might be the case.

The reality, of course, is that unmarried fathers in this country have very limited rights and responsibilities. Moreover, those they do have do not come by way of a gift from the mother of the child but rather by virtue of their own parenthood. However, whether a man is a good or bad father, an absent father or a present father, his child carries his DNA and therefore has a lifelong - in fact, a multi-generational - connection to him. Not knowing one's parents has many implications. For example, a person who does not know the identity of his or her parents is denied all types of health information that could be absolutely essential in terms both of preventative measures and treatment of illness. Even setting that aside, it is every child's entitlement to have information regarding his or her identity. This is a stand-alone entitlement of all children, even where such might be inconvenient for their parents.

I recognise that there may be good reason, in exceptional circumstances, that the father's name should not appear on the birth certificate. The legislation makes provision for such cases, with a requirement that the mother give reason in writing for the omission. Ultimately, the decision is made not by the mother but by the registrar. Such circumstances are rare enough. It might arise, for instance, where there is a criminal offence, such as where both mother and father are underage. In cases of incest, to give another example, the mother might be in fear of her life if she were to put the father's name on the register. Apart from these exceptional circumstances, the principle of inclusion of the father's name will apply. It is important for mothers to know, in giving the name of the father, that there are no new rights for unmarried fathers under this legislation.

On the father's side, too, there can be an even greater incentive not to give his name. Indeed, the one gap I see in the legislation is the lack of follow-up where a man does not accept the mother's word that he is the father. I see how it might be problematic to follow up in such cases, but there seems to be no procedure at all to establish parenthood where a father denies it. That is apparently the end of the process, with no penalty for non-co-operation. This is a major weakness in the Bill. If it is important to establish compulsory registration, we should be prepared to enforce it. It may be difficult and costly and require DNA analysis and so on, but for the child's sake - that being the prime motivator and concern behind this legislation - it is important that every effort be made to establish parenthood.

I very much welcome the provision for the inclusion on the birth certificate of the PPS numbers of both father and mother. This information could, in future, facilitate a system for ensuring all fathers meet their financial parental responsibilities. Heretofore, the taxpayer has taken on the financial responsibilities of fathers who walk away. Has the Minister considered the establishment of a separate register of non-marital fathers? I understand that was a recommendation of the Law Reform Commission. In Britain, for example, it is possible to identify the number of non-marital fathers who have multiple children with multiple mothers. It may be that this type of information will be needed in the future if we go down the road of financial responsibility. I do not know whether a separate register would actually be necessary; it may be that the inclusion of the unique identifier that is the PPS number would be enough to facilitate the extraction of that type of information. I do not wish to suggest that all fathers are trying to avoid responsibility. Of course that is not the case. In fact, the reverse is true and most fathers do meet their responsibilities. For those who do not, however, there is no reason for the taxpayer to continue picking up the bill on their behalf.

The Bill deals with other important issues which, however, do not have as wide-ranging an application as the provisions relating to joint birth registration. There are provisions dealing with the regularisation of foreign embassy marriages, recording in Ireland of deaths of Irish citizens abroad, and the recording of neonatal deaths. The latter, in particular, is a very welcome development. In addition, the Bill clarifies the position regarding open-air civil marriage ceremonies. Every Member has received representations on some or all of these matters. It is encouraging to see that even a small number of citizens who are affected by some gap in the law can make representations and find their needs are met in a timely manner. We can be proud of that achievement.

The provision regarding the sharing of information between Departments and State agencies is important and will help to streamline access to information and ensure citizens can access the most up-to-date services to which they are entitled. If we want efficient and cost-effective services, we must ensure those who deliver the services have access to the necessary relevant information. I cannot understand people who happily and thoughtlessly share the most intimate of information on Facebook and other social media but do not wish to provide State agencies with the most basic information necessary to ensure they can access good services. It does not make any sense that they would deny the State that type of information.

I particularly welcome the provision for information sharing on births, marriages and deaths between our historical registers and the genealogical website of the Department of Arts, Heritage and the Gaeltacht. I have an interest in genealogy and have spoken about this issue in the past. This type of website is a great resource for any country which wants its citizens to have access to information about their past. It is particularly so in a country like Ireland which has such a large diaspora. It is a great boon to the tourism and hospitality industry. I reiterate the point made by colleagues regarding the need to invest in the storage of our records and make them accessible to the public. They are an irreplaceable part of our heritage which, unfortunately, were left in appalling conditions during the Celtic tiger years. As resources become available, these records should be afforded the respect they deserve.

The Bill also attempts to prevent the practice of marriages of convenience. I listened with interest to what Deputies Michael McNamara and Clare Daly had to say on this issue. I say "attempts" because I see the provision as somewhat problematic to implement. In fact, I suspect it might be open to constitutional challenge.

As a member of the Council of Europe's migration committee, I know of the desperation which drives migrants, the lengths to which they will go, the money they will pay and the risks they will take to have a better life in Europe. I assure Deputies that getting married is the least of the risks they will take. The Minister is absolutely right, however, to try to prevent this abuse of marriage, primarily because it is so associated with trafficking. Where one has desperate migrants, one has greedy and ruthless smugglers and traffickers who will prey on them. The Latvian Government made representations to us in the past about this because it was suspected that the EU citizenship of many Latvian girls was being used to establish the right to marriage in Ireland to non-nationals. The large increase in numbers following the EU directive of marriages between non-Irish EU citizens and non-EU citizens would indicate there is a genuine problem. Some 2,000 to 2,500 marriages per year amount to a lot of marriages.

It may not stand up to a constitutional challenge because the right to marry is protected under the Constitution and any attempt to change, reduce or limit that would need to be on very firm ground, and I wonder if this is on firm ground. The impediments to marriage are matters of fact, such as one's age or marital status, but what we propose is to have another impediment to marriage, namely, a marriage of convenience solely for the purpose of creating immigration advantage. Instead of it being an objective fact, the new impediment wanders into the area of intent, motivation or why one is getting married. That is difficult to establish at the best of times. God knows, as Deputy Daly said, why some people get married. I am sure many people have gone up and down the aisle with all sorts of mental reservations about why they are getting married. The landscape in Ireland is littered with examples of marriages of convenience, whether to do with land, money, pregnancies or otherwise. They are, as we know, part of our history, but they have always been accepted by the State as valid marriages and they have never been questioned.

We are saying in this legislation that there is one kind of marriage of convenience which is not valid. We are singling out one group of people and denying them the right to marry based on why they are getting married. It is possible that could run into difficulties with the Constitution. Having said that, it is right that we should try to do this, not least to try to tackle the trafficking associated with it.

I congratulate the Minister on bringing this Bill to the House. Its measures reflect the significant changes we see in society. Legislation has not always kept up with changes in society, but for once we can be proud that we are responding to some changes in a timely manner. The Minister can be proud of her contribution in making the recording of those life defining moments, which are important but often traumatic for us, a little bit easier for citizens.

11:45 am

Photo of Anthony LawlorAnthony Lawlor (Kildare North, Fine Gael)
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I echo the sentiments expressed by Deputy Mitchell about marriages of convenience and it is sad we have to deal with this. As she indicated, there are many other types of marriages of convenience in the State which are not acceptable in modern Irish society but, unfortunately, we have not dealt with those in this legislation. This is very subjective and, as Deputy Mitchell said, we like to deal with facts when it comes to people marrying and preventing them from marrying. As she also indicated, there were circumstances, of which we all know, in which marriages of convenience took place which did not involve people trafficking or other nationalities.

It is great to be in the House when dealing with legislation which is reflective of society. There was a significant input from the people, who brought a number of situations and circumstances to Members of the House of the Oireachtas by way of meetings in clinics and with Ministers, and they have been brought to the floor of the House in this legislation which is reflective of modern society. Legislation must move rapidly in order that we can reflect what is going on in modern society.

I wish to speak about two issues, one of which I have spoken about on a number of occasions. I refer to the "Help bring them home" campaign. Most of us know people who, unfortunately, passed away overseas. A person does not need to die overseas to be unable to have his or her death registered in this country in that he or she need only die in the North of Ireland. That campaign highlighted that it is traumatic for families that the deaths of their relations are not recognised in this State. In future, there will be a record. When people looked for relatives, they could not find them because their deaths were not recorded. I welcome this provision and thank the campaigners from "Help bring them home" for their hard work. The Minister deserves credit for this also because she listened to society.

The compulsory registration of the father's name on the birth certificate is an important provision in this legislation. We all know the nuclear family in this society is changing dramatically. There are more births outside wedlock than ever before. It is important from the child's perspective that the father's name is registered. Deputy Mitchell raised a point in regard to PPS numbers which may help to highlight this even further, and the Minister might take that on board.

We have been advocating for the child's rights. Deputy Daly mentioned the children's referendum and this is a follow-on from that. I would be very supportive of this because children, who are our future, need to know their parents' identity.

I welcome the Bill which is not so much reforming legislation as legislation catching up with society, something we need to take on board more often. Legislation should reflect society.

Debate adjourned.