Brian Hayes (Fine Gael)

Amendments Nos. 3 and 28 are in my name and that of Senator Cummins. They relate to a fundamental issue on which many Senators have received representations from a wide number of groups representing unmarried fathers and mothers.

Amendment No. 3 seeks to include after the word "adoption" the word "guardianship". Senator Cummins and I propose that change in order to bring a new definition to the Bill and to bring into being a new registration for guardianship orders, which have been granted for the past ten years or so. In amendment No. 28 we go further, proposing a new section urging the registration of guardianship. I have read the Minister's remarks on this matter in the other House, where she will no doubt agree that a very interesting debate took place. I commend the Minister on many of the initiatives she is taking in the Bill, but there is nevertheless a good deal of public concern about the fact that while we are putting in place a registration procedure, we are excluding the issue of guardianship, which to many people is "a life event" and very significant in their lives as a result of orders obtained.

Before the legislation brought to the House by former Deputy and Minister for Equality and Law Reform, Mervyn Taylor, it was the case that in order for guardianship to be recognised by the State, a father and mother had to go to court to have it determined. The decision would be set out by the court in a very prescriptive form. As I understand it, since the 1997 legislation, it now falls within the responsibility of the father and mother to determine the issue themselves, entirely outside the courts. That is a very good development because, as the Minister knows, there is no legal fuss or cost involved and perhaps through a peace commissioner people can have a guardianship order recognised and signed.

In my constituency clinic last Saturday I met a group of men who are concerned that if guardianship orders are not recognised in the context of this Bill, a whole range of difficulties and concerns that we may not have considered may open up. There is a necessity to do something about that.

Let us consider the following scenario. An unmarried mother and an unmarried father have a child. Some years later they agree on guardianship. They both have that document but let us assume he loses the document and there is a further deterioration in the relationship between the two parties. If that unmarried father does not have access to the document originally obtained under what I believe is the 1997 legislation, he has no proof that such an order was granted.

There are some practical outcomes if this measure cannot be brought forward. For instance, if the father wants to take the child out of the jurisdiction, as I understand it, under guardianship the father and the mother must agree to that. However, if the unmarried father does not have a document stating that, for one reason or another, and the woman refuses to acknowledge guardianship, there is no standing for the unmarried father in the eyes of the law.

To take another example, a mother could put her child up for adoption. If the unmarried father has guardianship I would have thought his views on the matter are fundamental as to the future of the child, yet if he does not have access to this document for one reason or another he will find it difficult to prove that. The same is true for health information. I have come across a number of cases in my constituency whereby the father wants access to the reports of a child in State examinations or in-house examinations in schools. Has he the right to obtain those if he does not have the document so described? It is good for a whole range of reasons to put this into the legislation as a first principle.

The Minister stated in the other House that guardianship is not a life event; I believe that is the term she used, but I remind her that when the Bill was published the explanatory memorandum stated that apart from providing a record of vital events in relation to persons living in the State, these records also satisfy the need for evidence which has a bearing on rights, entitlements, liability, status and nationality. The Minister has conceded in the explanatory memorandum that rights flow from many of the agreements we make.

It is good practice to stitch these guardianship orders, which the law wisely has facilitated, into the legislation and, from now on, register those with the registration procedures in the State because it is not sufficient simply to have the name of the father on the birth certificate. If the father has guardianship it implies not just rights for him, and we will come to that in another section, but it implies obligations on him by ensuring the State has a system of tabulating these guardianship orders. From a public policy perspective we need to know that information. I am not sure how many of these guardianship orders have been granted since the legislation was introduced. No one knows because no one keeps a record of it but we now have a chance to modernise our national records and with these guardianship orders, that should be the case.

I apologise for going on about this matter but I have strong opinions on it. I want to read a statement from Treoir, which is the national federation of agencies which provide services to unmarried parents and operates a national information centre for unmarried parents and those who work with them and, through this service, the regular communications with member organisations. I am sure the Minister will welcome this statement. It states:

Treoir welcomes the legislation to modernise the civil registration system but there is a number of issues which are of concern to the organisation . . .

Joint Guardianship by Agreement — register:

There has been a missed opportunity in the Bill in that it does not allow for the setting up of a system of registering Joint Guardianship Agreements... [that was following the 1997 legislation to which I referred]. These are statutory agreements which unmarried couples can sign in the presence of a peace commissioner or commissioner for oaths agreeing to joint guardianship of their child as unmarried mothers have sole rights and fathers have no automatic rights. There is no obligation on the peace commissioner or commissioner for oaths to record such agreements. There is no central register for such agreements and we believe that a facility for registering such agreements should be included in the Civil Registration Bill.

Over one third of children are born outside of marriage and many of the fathers of these children rely on such agreements to acquire and prove guardianship rights of their children. In case of dispute between parents the only record is a copy of the document and if this is mislaid there is no way of establishing that such an agreement was made.

This is not just an issue that many men's organisations have brought to colleagues' attention. It is an issue which those who work with unmarried parents have identified through the Treoir organisation.

We have a responsibility to move with the times on this issue. The Minister said she is consulting with her colleague, the Minister for Justice, Equality and Law Reform, on the matter. We now have an opportunity to insert this provision in the legislation from day one. Many people would be very grateful for that because in the natural course of events relationships break down and become acrimonious, with one side saying this and the other side saying that. It is difficult to work out who is telling the truth in the whole saga and I would have thought it sensible that we would have a national register for these guardianship agreements which the courts could then refer to because the Minister states, in the explanatory memorandum, that the records satisfy a whole range of other rights. We have to keep that in mind. I apologise for being so long-winded.