David Norris (Independent)

I move amendment No. 5:

In page 14, before section 4, but in Part 1, to insert the following new section:

4.—In a case where one of the partners in a civil partnership has, or had prior to the entry into a civil partnership, adopted a child or children to whom they may or may not be biologically related, and in the event of the death of that adopting parent, the surviving partner shall be regarded in law as a guardian of the child or children.".

This amendment involves the insertion of a new section into the Bill and involves the granting of a degree of retrospection in respect of an extremely serious situation.

I wish to place some flesh on the bones of the amendment. The Minister may have been too busy to hear an extremely important discussion on this matter which occurred on radio in recent days. During that discussion, Henk Krol, who has been involved in the areas of civil and human rights for many years and who hails from the Netherlands, referred to a situation in which a young Dutch woman married a Frenchman. They had one daughter together but after some years the marriage broke down. The biological father and ex-husband did not pursue an interest in the child and the former wife took the child back to the Netherlands to live with her. Tragically, the biological mother and former wife was killed in a traffic accident. As already stated, the biological father had no interest in the child but his parents - of whom the child had no recollection whatever - intervened and took a case in the Dutch courts in order to secure access to her and transport her to France, a country of which she had no recollection and in whose language she was not conversant. Needless to say, that young person had an extremely troubled childhood as a result. It was in the aftermath of this case and others like it that the Dutch authorities changed the law.

I am realistic with regard to whether these two amendments are going to be accepted. It is highly unlikely that they will be accepted but the Minister may, of course, spring a surprise on us. However, I do not believe this will happen.

Amendment No. 37 is quite substantial in nature and the Minister has indicated a degree of movement in respect of the area to which it relates. I hope he will request that his officials pursue this matter. If it is an issue which should be explored by the Law Reform Commission - I share the Minister's confidence in that body - I hope the effect of what we are doing here will be, at the very minimum, to impel the debate forward and provide a new vigour in respect of it. As the Minister will see and as colleagues on all sides of the House have been kind enough to remark, amendment No. 37 is very detailed and carefully crafted. I pay tribute to the various individuals who assisted me in its production. It is important that we take it seriously. I am a realist, but I hope, at the very least, the Minister will accept it is important that we advance all of these issues. I would like to see a full resolution of all of them. If we are forced by circumstances to adopt an incremental approach instead, I hope we will be moving in the right direction, at least.

I again quote from the Ombudsman for Children's report on the Bill:

However, if the intention of the legislation were to provide such protection to children of civil partners, then it should have done so explicitly and mandated the courts to consider the needs of children affected by such orders, rather than relying on courts to utilise the latitude provided by the Bill in a discretionary manner. It would not be unreasonable for a court to assume that the clear decision not to provide for the children of civil partners in the areas outlined [there are many] signified an intention on the part of the Oireachtas for there to be some substance to the difference in the level of protection afforded to those children.

The Minister has spoken about what he perceives as the required differential between marital status and the status of civil partnership. I assume he would not wish to discriminate between children. That brings us to the nub of the moral issue.

As the Minister said, this issue is extremely complex. He has indicated that there was a ruling in one of our higher courts to the effect that in a partnership a child could only be the child of one of the partners in a civil partnership of the same sex. That is not necessarily the case. I respectfully suggest the courts may have misdirected themselves in law. This is not the first time they have done so. There was a notorious example when the late Mr. Justice O'Higgins - I hope I am right in that regard - misdirected himself in law in a case in which I was involved. I do not have any malign intention when I say I hope I am right. I do not want to suggest he is dead if he is not. I believe he is. I mention this because it is theoretically possible - I wonder if the Minister agrees - to have a relationship between persons of the same sex, with the biological child of one being adopted by the other. It may be unlikely and may not be contemplated by law, but it is certainly a theoretical possibility. I respectfully suggest the judgment in this case was wrong. If possible, I would like to extract from the Minister some comfort, in advance of a possible court case, on the question of whether it is the intention of the Oireachtas for there to be some difference in the level of protection afforded to these children. If so, that would be a very worrying concept.