Dermot Ahern (Louth, Fianna Fail)

Under section 7 of the Guardian of Children Acts 1964 to 1997, the father, mother or adoptive parent of a child may appoint a testamentary guardian. In a case where a child is being brought up by a parent and a civil partner, the parent is free to appoint the civil partner as testamentary guardian of the child. Although such guardianship does not bring with it succession rights, the testamentary guardian will otherwise have parental responsibilities if he or she is the sole remaining guardian of the child. The matter may be complicated if the child has another living parent who is a guardian. Any dispute over custody and guardianship in such a case may be referred to the courts, which shall take the welfare of the child as their first and paramount priority in considering what orders to make. We believe, therefore, that amendment No. 5 is unnecessary.

There is clear provision in existing law for a parent to decide who should best care for his or her children in the event of his or her death. Often, the person concerned is a spouse, trusted relative or, with the passage of this legislation, a civil partner. The amendment specifies that the civil partner shall have the same parental relationship with the child without regard to wider circumstances. This may remove the discretion of the child's civil partner parent to decide who should be the child's guardian. It may also infringe on the rights of another guardian of the child and we believe it ignores the sometimes complex relationships between parents and their children.

Amendment No. 37 proposes extensive reforms to the Guardian of Children Acts. It would have an effect on a marital family where the child is not the offspring of the marriage, which is outside the scope of the Bill, as well as on civil partners. I have outlined the strong advice I received from the Attorney General regarding the constitutional scrutiny required of this Bill. The issue of giving a unit which is not based on marriage a constitutional authority that is substantively identical to a family would probably be viewed as reneging on the Constitution's protection for the latter.

I do not want to rehearse our earlier discussion on children generally but the Law Reform Commission is examining this area. In regard to Senator Bacik's specific question, the LRC indicated approximately six months ago that it would require 18 months to prepare a report. I do not think it is necessary to state that I have full confidence in the commission. However, that is not to say this or any other Government should slavishly adopt its recommendations on any subject. The home defence Bill which I will publish tomorrow is based on a Law Reform Commission report in that area but we are not going as far as it recommends. Similarly, we will debate the Multi-Units Development Bill 2009 in the Dáil tomorrow. With due respect to the LRC, the Bill we published some time after it issued its own draft legislation on this subject was much more comprehensive. The rationale behind the commission is to bring together independent experts who can objectively investigate a range of issues and make reports and recommendations to Government and the Oireachtas. Senator Walsh called for independent and objective analysis of these issues but what better place than the Oireachtas to consider them? We are elected to make those decisions. The Government proposes and the Oireachtas disposes.