Thursday, 7 November 2019
Topical Issue Debate
I wish to raise the issue of the granting of a passport for Sofia, the child of Sinéad Deevy and Kashka Sankowska. This is in light of the fact that the Children and Family Relationships Bill has not been fully enacted, leaving Sofia effectively stateless and unable to travel home to Dublin.
Both Ireland and Poland have refused to acknowledge the existence of Sinéad's and Kashka's daughter because they are both women and are unable to obtain any documentation for their daughter, apart from her Spanish birth certificate which has both of their names on it. That does not, however, get Sofia any kind of passport or official identification. Their daughter remains stateless and as a result, they are unable to return home to Ireland or to travel anywhere else that involves a hard border. This is a clear violation of Articles 7, 21, 24 and 45 of EU Charter of Fundamental Rights and Articles 3, 7 and 8 of the United Nations Convention on the Rights of the Chid. She has fallen through the legislative cracks of all these countries, rendering her illegal in every country. They have applied for Spanish citizenship, which is going nowhere at the moment. Both are now at the end of their wits and are truly concerned for Sofia's safety on so many levels, not least because she has no photographic identification saying who she is, thus, in reality, she does not exist. This is a very frightening reality for any parent.
We also know that the Minister, Deputy Harris, confirmed recently that he would be signing off on the pertinent regulations of the Child and Family Relationships Act 2015 which will recognise two mothers on a birth certificate from 2020. The parents have that. They are not looking for an Irish birth certificate but are looking for a temporary passport in order to bring their daughter home and, hopefully, to make it back in time for Christmas so that her 84 year old granny can welcome her home to Ireland.
I concur with everything Deputy Collins just said. It looks, on the face it, like a very simple case of an Irish citizen stuck in Spain, because her mother is Irish, looking for travel documents to allow her, at the young age she is at, to come back to Ireland, to enjoy the company of both parents, to hopefully grow up in Ireland and to avail of a passport when that opportunity arises next May. Can the Department and the Minister exercise discretion and compassion in this instance? This is literally looking for travel documents to allow this child to return to Ireland.
Sofia is stuck in a legal limbo which is not of her making and which none of us expected when we passed the Child and Family Relationships Act. We intended, as a consequence of this Act, that children in this instance would be able to avail of an Irish passport, but bureaucratically we are going to have to wait until May. The intent and the effect of the law should be to look at cases such as this one, which are harrowing for the parents who are afraid for their child who has no passport and who basically has no rights in the country she is in because she has no identification documents. She has a birth certificate which states clearly who her parents are but does not grant her the right to travel. I hope the Minister will be able to intercede on the family's behalf.
I thank both Deputy Collins and Deputy Ó Snodaigh for raising this important and, indeed, personal and very sensitive issue. I hope that we will be in a position, if not this evening, but certainly at some early date, to chart a future path which will allow for advice towards a resolution. It would not be appropriate for me at this stage to share personal details in relation to any person or their family, but I would, for the purposes of this debate be pleased to address the broader issues raised by the Deputies and, specifically, the entitlement to Irish citizenship of children born to same-sex couples.
The Passport Act 2008 that has been referred to sets out the legislative framework within which the passport service processes all applications for passports.
Pursuant to section 7 of that Act, a passport cannot be issued unless the Minister is satisfied the person is an Irish citizen and satisfied as to the identity of the person. Citizenship, as Deputies will be aware, is governed by the Irish Nationality and Citizenship Act 1956, as amended, which is under the responsibility of the Minister for Justice and Equality. Legislative measures in regard to citizenship do not fall within the remit of the Department of Foreign Affairs and Trade. They do fall within the remit of the Passport Service. In this context, the service has received a number of applications from same-sex married couples seeking to obtain Irish passports for their children born abroad and, in giving due consideration to these applications, has raised a number of issues in regard to both citizenship and guardianship with the relevant Departments and the Office of the Attorney General.
I would like to set out the current legislation. Section 7 of the Irish Nationality and Citizenship Act 1956, as amended, addresses citizenship by descent and provides that a person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen, although an additional requirement of registration is imposed in respect of children born outside the State of Ireland where the Irish citizen parent was also born outside the island of Ireland. The Passport Service has received legal advice that states that, for the purposes of the 1956 Act, a parent is understood to mean either the mother or father of the child. For the purposes of Irish law, the mother of a child is the person who gives birth to the child or a female adopter of the child. In general, the father is the person identified as the genetic father of the child or a male adopter.
The Passport Service has received passport applications for children born outside the State to same-sex couples where one member of the couple is an Irish citizen and the other is not. The question arises as to whether, under the current legislation, where the Irish citizen is neither the birth mother nor the genetic father, or alternatively the male or female adopter of the child, the child qualifies for Irish citizenship by descent. The Department of Foreign Affairs and Trade sought advice on its understanding of the 1956 Act from the Office of the Attorney General, which recommended that confirmation should be sought from the Department of Justice and Equality. The Passport Service has sought clarification on this and other related matters, including the effect on citizenship of Parts 2 and 3 of the Children and Family Relationships Act 2015, once commenced in May 2020, from the Department of Justice and Equality. The Department of Foreign Affairs and Trade will issue passports in accordance with any legislative changes on commencement.
While I will not get into the detail of any personal case in the House, I will bring today's debate to the attention of all appropriate colleagues in my Department and the Departments of Foreign Affairs and Trade and Health, which may also have certain responsibilities in this regard. I assure the Deputies that my officials are working closely with officials from other relevant Departments to ensure this matter is clarified as soon as possible.
I thank the Minister for his reply. He clarified and outlined the circumstances of the legislative process for a mother or father in recognising citizenship. In the case in question, Sofia was born in Spain. Kashka is Polish and Sinéad, who lives in Bangor Road, Crumlin, is Irish. That information is the media so my mentioning it is not a problem. Their daughter is stateless. They are in Poland now and need to bring their daughter home. The have the birth certificate. Their two names are on it. They have gone through the process of applying for citizenship in Spain but that is going nowhere fast. They need some sort of temporary travel documents to get themselves and Sofia home as soon as possible so they can start the application process here. It is to go through next May. The child is stateless and has no photographic identity and Sinéad and Kashka are very concerned about her. I realise that the Minister cannot talk about specifics. Could he at least give an indication? I wrote to both the Minister and the Minister for Health about this issue on 30 October.
I welcome what the Minister said at the outset, that is, that he will consider this matter and hopefully find a pathway to allow Sofia to travel to Ireland. I genuinely hope he will be able to find that pathway as quickly as possible. It is specifically a matter of allowing passports for genuine cases in these instances until we have legislation in place. It is not a catch-all. As always in law, there will be exceptions or complications, and this is one of them. It falls between the cracks. I genuinely believe the Minister will examine this.
As the Minister stated, what is at issue is the interpretation of the Irish Nationality and Citizenship Act 1956. That was produced in a different era, an era long before some of the reproductive methods in question were in place and when we, as a society, had not addressed the issue of same-sex couples. It is not just same-sex couples who are caught in these circumstances; heterosexual families can also get captured. I have outlined why we have addressed this and the relevance of next May. I thank the Minister. I hope the matter will be addressed over the weekend and that there will be a positive outcome.
I do not doubt any of the issues raised by Deputies Joan Collins and Ó Snodaigh. There are a number of issues involved that require some clarification. I would be happy to engage by way of written correspondence with the Deputies as soon as it is practicable after this debate. As they have acknowledged, there are a number of Departments involved. The Department of Foreign Affairs and Trade has overall responsibility for issuing passports. It is very much aware of recent legislative changes. My Department and the Department of Health are also involved. The Department of Employment Affairs and Social protection may well have an impact in this area also in terms of civil registrations. I assure the Deputies in any event that there are discussions between ministerial colleagues and civil society groups and families in regard to rights that follow from the commencement of Parts 2 and 3 of the Children and Family Relationships Act 2015 as an effort to address some of the outstanding issues that may well incorporate the issue raised. I ask the Deputies to allow me to go back to my Department and to consult colleagues in the Departments of Foreign Affairs and Trade, Health and Employment Affairs and Social Protection with the view to seeking an early resolution in respect of the matter raised.