Dermot Ahern (Louth, Fianna Fail)

I have been somewhat of a bystander during this debate on children. I have no doubt this Bill will be tested in the courts at some stage, so I think it is appropriate I put on record the reasoned view the Government has on the proposed amendments.

Under the Family Home Protection Act, a spouse may be considered by the court reasonably to withhold consent to the conveyance of the family home, where there are dependent children of the family. Amendments Nos. 2 and 22 propose to impose the same restrictions on the conveyance of the shared home of civil partners where there is a dependent child of one of the partners. The Bill does not impose these restrictions on a civil partner in respect of the child of the other civil partner. This is because the Bill's scope is confined to the relationship between adult couples and the extensive range of mutual rights and obligations between them.

Section 110 of the Bill provides that a court may grant a decree of dissolution to civil partners, only if proper provision exists or will be made for the partners, having regard to the circumstances of the case. Amendments Nos. 63 and 64 propose that in order to grant a decree of dissolution, a court will also have to be satisfied that proper provision is made for the dependent child of either of the civil partners. The Bill again makes no provision for children for constitutional reasons we have discussed at some length. This does not mean the court is required to ignore the needs and requirements of a dependent child or children of either civil partner. Section 110 requires the court to be satisfied that proper provision, having regard to the circumstances, exists or will be made for the civil partners.

The parental responsibilities of either of the civil partners is a relevant circumstance for the court to consider in making ancillary orders on dissolution of the civil partnership. Section 129 sets out factors for the court to consider in making ancillary orders. This includes, under section 129(2)(l), "the rights of any person other than the civil partners but including a person with whom either civil partner is registered in a new civil partnership or to whom the civil partner is married, or any child to whom either of the civil partners owes an obligation of support".

A dependent child cannot be regarded as a child of both civil partners, but safeguards are in place to require the courts to have particular regard to the parents' responsibility to maintain dependent children. The Bill can go no further than this without, in our view, undermining the fine constitutional balance it attempts to achieve. The Bill has been rigorously scrutinised by the Attorney General during the drafting process and he has given advice related specifically to making provision for children within the Bill. In particular, he has advised that "Giving a familial unit that is not based on marriage a constitution - two adults who are co-parents of children - and authority - full parental powers, rights and duties of adoption - substantially identical to that of a family would probably be viewed as reneging on the guarantee to protect the family in the Constitution."

My legal advice is very clear on these matters, and I have no doubt that introducing substantial legislative provisions relating to the children of a civil partner will upset the careful constitutional balance of this Bill. The issues surrounding children are extremely complex and I do not wish to ignore the fact that there are children being brought up by same-sex couples. However, this is not the Bill to deal with matters relating to children being cared for in non-marital households. The position of children in a marital family is different by virtue of the additional constitutional protection afforded to the marital family. Civil partners caring for children do not have the same constitutional protection, and we cannot impose obligations on them with respect to their parents' children in the same way as is done in family law Acts. The Attorney General's advice on the constitutional robustness of the Bill has been very clear that providing a formal legal relationship between a civil partner and children of the other civil partner may undermine the constitutional protection given to the family. The amendments would make the Bill more vulnerable to a constitutional challenge.

However, as Senator Bacik said, the Bill is not entirely silent on the matter of protecting children. Section 129(2)(l) the Bill expressly mandates the court in making financial and property orders to consider the rights of people other than either of the civil partners, specifically including any child to whom either of the civil partners owe an obligation of support. This is an important provision to protect children as the right of the child to the financial support and care of its parent must be considered before any financial or property order is made in favour of the civil partner. We believe the Bill achieves a balance in protecting children while respecting the special constitutional position of marriage.

When the Government looked at the formulation of the civil registration regime for same-sex couples, it was very mindful of the implications for children. As I stated previously, there is a very extensive body of law in regard to children generally in areas such as guardianship, maintenance, access and custody and many of these issues are faced by persons, whether married or not.

Some people have made the suggestion that there be express provision in this Bill, including the Ombudsman for Children. As I said when concluding on Second Stage, I received just last night the submission from the Ombudsman for Children. I had an opportunity during Second Stage to read the submission. I made the point that this Bill was published in June 2009 and I was somewhat surprised I only got that submission last night.

As I said, a significant examination is being carried out by the Law Reform Commission in regard to legal aspects of family relationships. It issued a consultation paper in September 2009 after the publication of the Civil Partnership Bill. It outlines the sort of issues that need to be discussed. It is an extremely complex and well set out paper. It does not refer to same-sex couples as such but refers to step-parents. Interestingly, the Ombudsman for Children is thanked by the commission for her valuable assistance along with other people. Obviously, she has had an input in this regard, although the paper is silent in regard to same-sex couples. That shows that one could not just deal with the issue of children of civil partners in this Bill without affecting a myriad of other types of relationships which children have with biological parents and adopted parents and the rights of the natural father who may not be part of the civil partnership.

There are also issues relating to guardianship. That is being considered by the Law Reform Commission. The consultation forms part of its third programme of law, involving the examination of the rights and duties of fathers in regard to guardianship, custody, access to their children and the rights or duties of the extended members of families, including grandparents and step-parents.

This document also examines the area of the law. The issue under discussion by the commission is whether Irish law should continue to distinguish between categories of fathers for the purpose of guardianship and so on. The commission sought submissions by the end of 2009 with a view to publishing its final report and recommendations within 18 months. If anyone in this House or outside it has not made a submission, in particular in this area, I suspect the Law Reform Commission would be able to take one on board in the context of the consultation it is carrying out.

In her submission, the Ombudsman for Children states she is mindful that I have outlined previously the reasons behind the Government's approach to this Bill. She refers to the reasons we have dealt with it in this way, Article 41 of the Constitution, the desire to avoid addressing discrete questions relating to guardianship outside the wider context of reform of this area of law and the review currently being undertaken by the Law Reform Commission in regard to legal aspects of family relationship. She recognises that these issues relating to children are complex and interact with other areas of the law beyond the scope of the civil partnership Bill. That is the very reason the Government decided not to include specific provisions in regard to children of same-sex couples in this Bill. She concludes by stating that she fully appreciates that these matters relating to the rights and welfare of children in the Bill are complex and interact with areas of the law beyond the scope of the civil partnership Bill.

Senator Regan raised the issue of the de facto family. He referred to a High Court judgment which was appealed to the Supreme Court. In the Supreme Court judgment on that case, Mrs. Justice Denham stated:

The term "de facto family" has arisen as a shorthand method of describing circumstances where a couple have lived together in a settled relationship for some time with a child. Such a set of relationships are relevant in considering the welfare of the child. There is no institution of a de facto family.

79. Thus, there is no institution of a de facto family which may be applied by analogy to the respondents. Therefore, it was an error on the part of the learned High Court judge to describe the respondents and child as a de facto family as if it were a recognised institution. However, the circumstances of the case show that the respondents have lived together for years in a loving relationship and that they provide a settled and loving home for the child. These factors are critical and of importance in assessing the welfare of the child.

I return to the point that has been raised time and again that the way the Supreme Court has adjudicated on the issues has confirmed that a family is made up of a heterosexual couple. That was confirmed as recently as December of last year.

In regard to children, I wish to make a number of points which again show the complexity of this issue and the reason the Government has made the restriction in regard to the Constitution. There must be material differences between civil partnership and marriage. I accept people do not accept that but it is the case in regard to the Constitution. Until the Constitution is changed, we must work within it.

The issue of children creates significant distinct issues relating to the welfare of the child, the constitutional position of the family, surrogate issues and other issues relating to IVF etc. and the rights of the natural father. Senators adverted the fact the children of a same-sex couple are children. However, the fact there is obviously other biological parents of the children involved raises the issue as to how their constitutional rights are dealt with. These are extremely complex legal and social issues and we believe would not be appropriately dealt with in this Bill. When Irish law assigns parental rights and duties, it already accords primacy to the biological link between the parent and the child. The law does not currently recognise the concept of what is sometimes termed social parenting. A child living with a same-sex couple can only be the biological and legal child of one of the couple, and the child's other biological parent has rights in respect of the child, whether or not those rights are currently being exercised. This was confirmed recently in a Supreme Court case, JMcD v PL and BM.

If we were to deal in this Bill with children of same-sex couples and not deal with a similar situation, that could lead to the accusation of discrimination on the basis of sex. We would not be dealing with similar situations such as heterosexual step-families, whether based on marriage or not. If the Bill were to assign parental rights to a civil partner of a child's mother in circumstances where the law would not assign equivalent rights to the mother's heterosexual partner or husband, this would potentially discriminate between children based on the sexual orientation of the adults caring for them, as well as encroaching on the existing constitutional rights of biological parents.

Under section 129 there is protection for the children in relation to division of property. I go back to the point I made earlier about the major report of the Commission on the Family, which I was party to when I was Minister for Social, Community and Family Affairs as far back as 1998. We could not come up with a definition of a family, given that even in those days there was a myriad of different types of relationships and, flowing from that, different types of relationships between those family units and children. Given that this is being dealt with by the Law Reform Commission in an ongoing consultation leading to a final report, I suggest to Senators and others outside the House who have made submissions on the Bill that the proper place to provide for dealing with legal aspects of family relationships is this consultation process. A composite response to looking after the best interests of children of civil partnerships is this vehicle and not a very focused Bill which would not be able to deal with the concurrent issues of the relationship and the constitutional rights with natural parents who would not be part of the same-sex couple.